Labour Disputes
Texto da decisão
REF. FPSD-7712
Decision of the
Dispute Resolution Chamber
passed on 30 March 2023
regarding an employment-related dispute concerning the player Omar
Elabdellaoui
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Dana Mohamed Al-Noaimi (Qatar), Member
Johan Van Gaalen (South Africa), Member
CLAIMANT:
Omar Elabdellaoui, Norway
Represented by Konstantinos Zemberis
RESPONDENT:
Galatasaray AS, Türkiye
Represented by Ruiz-Huerta & Crespo Sports Lawyers
pg. 2
REF. FPSD-7712
I. Facts of the case
1.
On 17 August 2020, the Norwegian player Omar Elabdellaoui (hereinafter: the player or the
Claimant) and the Turkish club Galatasaray AS (hereinafter: the club or the Respondent)
concluded an employment contract valid as from the date of signature until 31 May 2023
(hereinafter: the employment contract).
2.
According to payments section of the employment contract, the club undertook to pay the
player inter alia the following amounts:
a. For the 2020/2021 season: EUR 1,802,634 payable as follows:
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•
•
•
•
•
•
•
•
•
EUR 164,460 on 31 August 2020;
EUR 164,460 on 1 October 2020;
EUR 164,460 on 31 October 2020;
EUR 164,460 on 30 November 2020;
EUR 164,460 on 5 January 2021;
EUR 164,460 on 31 January 2021;
EUR 164,460 on 28 February 2021;
EUR 243,477 on 5 April 2021;
EUR 164,460 on 30 April 2021; and
EUR 243,477 on 31 May 2021.
b. For the 2021/2022 season: EUR 2,160,384 payable as follows:
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•
•
•
•
•
•
•
•
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EUR 170,770 on 31 August 2021;
EUR 170,770 on 1 October 2021;
EUR 170,770 on 31 October 2021;
EUR 170,770 on 30 November 2021;
EUR 170,770 on 5 January 2022;
EUR 170,770 on 31 January 2022;
EUR 170,770 on 28 February 2022;
EUR 397,112 on 5 April 2022;
EUR 170,770 on 30 April 2022; and
EUR 397,112 on 31 May 2022.
c. For the 2022/2023 season: EUR 2,844,789 payable as follows:
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•
•
•
•
•
EUR 177,080 on 31 August 2022;
EUR 177,080 on 1 October 2022;
EUR 177,080 on 31 October 2022;
EUR 177,080 on 30 November 2022;
EUR 177,080 on 5 January 2023;
EUR 177,080 on 31 January 2023;
pg. 3
REF. FPSD-7712
•
•
•
•
3.
EUR 177,080 on 28 February 2023;
EUR 448,569 on 5 April 2023;
EUR 177,080 on 30 April 2023; and
EUR 979,580 on 31 May 2023.
In addition, the section of payments of the employment contract also included the
following buy-out clause:
“The Player has the right to terminate the Contract unilaterally and set himself free to be
transferred to any club, except for Turkish clubs, he wishes, provided that a ‘buyout
payment’ of 7,000,000 (seven million) Euros net (from any deduction or withholding, but
not from Income tax or other tax obligations that might be payable by the Club) Is paid
to the Club within 3 (three) days after the date of the mentioned termination.
This option to terminate the contract unilaterally and set himself free may be exercised
by the player between 1st January and 15th January and/or between end of May and 31st
July of each football season and the relevant ‘buy-out payment’ must be made by the
Player or by any other club, except for Turkish clubs, which wishes to sign a contract and
register the player, within the above-mentioned deadline of 3 (three) days from
termination”.
4.
In addition, art. 3, par. 2 and 11 (special provisions) of the employment contract read as
follows:
“2. The wage and bonus payments to be made to the Player as per this agreement are
gross in accordance with Provisional Article 72 of Income Tax Law No. 193. In this context,
the Club Is obliged to withhold income tax in the ratio of %20, which is the current ratio
regulated by Turkish Tax Legislation as of signature date of this Agreement and may be
amended by the competent authority, from the Player's gross pay and pay the
withholding amount to tax office.
The parties agree that the minimum net amount that the Player shall receive by the Club
(without the extra payments of the bonuses) is 1,300,000 (one million three thousand)
euros for the season 2020-2021, 1,350,000 (one million three hundred fifty thousand)
euros for the season 2021-2022 and 1,400,000 (one million four hundred thousand)
euros for the season 2022-2023 provided that the Player wholly fulfills his obligations
and/or liabilities in compliance with Turkish tax legislations. The parties further agree
that if the Player is required to pay any additional levy, duty or fiscal obligation In Turkey
with respect to the amounts received by the Club or because of his employment with the
said club and his residence In Turkey, apart from the income tax that is being withheld
and paid by the club or the remaining income tax that is payable by the Player after filling
a tax return, such additional levy, duty or fiscal obligation will be paid by the club.
pg. 4
REF. FPSD-7712
The Club shall not be held liable for any taxes, charges, or expenses or costs payable in
any third country out of Turkey. In this context, the Player agrees to Indemnify and keep
indemnified the club In respect of any taxes, charges, or expenses or costs (including any
social security contributions in respect of the Player) which the club is ordered or required
to pay in countries other than Turkey in relation to the employment of the Player with the
Club.
Likewise, in case of any amendment in the relevant tax legislation within the term of the
Agreement, the wages (and the bonuses) that the Player will be entitled under this
Agreement will be revised In accordance with the amended tax legislation and will be
valid from the date of this amendment, so that the final net amount that the Player is
receiving (without calculating the bonuses) for each season is not lower than the
aforementioned and that the bonuses paid under this contract correspond to the
equivalent net amount agreed today on the basis of the current tax legislation of the
Turkish State.
All payments under this Contract shall be made only In Euros to the Turkish bank account
of the Player (the details of which will be notified to the Player).
[...]
11. In the case of the Club falling to pay the Player at least two monthly salaries on their
due dates, the Player must send a written notice to the Club and must allow 15 days for
payment. If the Club falls to fulfill Its financial obligations within this 15-day period, the
Player will have right to terminate the Contract with just cause Immediately without
paying any compensation and he will be entitled to receive by the Club, as an agreed
compensation for the termination of the Contract, an amount equal to the residual
value of the contract. The same agreed compensation shall be payable by the Club
in case the Contract is terminated by the Player with just cause for any other
reason or by the Club without just cause” (emphasis added).
5.
On 31 December 2020, the player suffered an accident with fireworks during the New
Year’s Eve, which seriously affected his eyes and vision. The player underwent multiple
surgeries and recovery sessions during the year 2021.
6.
On 22 December 2021, the player and the club concluded a “protocol on restructuring of
receivables” (hereinafter: the Protocol). Accordingly, the club acknowledged a debt of EUR
448,634.96 net towards the player “as of the date of this Protocol”, to be paid as follows:
Amount
Reference
New payment date
EUR 135,000 net
Salary due on 1 October 2021
20 February 2022
EUR 135,000 net
Salary due on 31 October 2021
one on 20 February 2022 and the
Two equal instalments: the first
second on 4 April 2022
pg. 5
REF. FPSD-7712
Two equal instalments: the first
EUR 46,6234.96 net
Outstanding payments
one on 20 February 2022 and the
second on 4 April 2022
EUR 135,000 net
Salary due on 30 November 2021
4 April 2022
7.
On 21 February 2022, the player was fielded for the first time after his accident.
8.
On 19 August 2022, the player put the club in default and requested payment of EUR
153,214.93 net (or EUR 314,356 gross) corresponding to the balance of the instalment due
in May 2022, as well as bonuses of EUR 40,000. He requested the club to cure the breach
within the following 10 days.
9.
On 25 August 2022, the club replied to the player’s correspondence and inter alia stated
that all the payments due under the employment contract had already been delivered.
10. On 1 September 2022 at 7:24 CET, the club reached out to the player’s representative via
email and informed that the Turkish team, Hangi Kredi Ümraniyespor (hereinafter: HK
Ümraniyespor) had made an offer for his temporary transfer during the 2022/2023 season.
A response from the player was requested up until 20h Turkish time.
11. On 1 September 2022 at 19:37 CET, the club acknowledged that no reply had been received
from the player’s representative until that moment and urged him to do so until 21:00 CET,
to no avail.
12. On 1 September 2022 at 22:27 CET, the club notified the player of the termination of the
employment contract (hereinafter: the Termination Letter). The Termination Letter reads as
follows, quoted verbatim:
“We [the club], hereby inform you that [the employment contract] is terminated by the
club on 01.09.2022 with just cause as indicated forth below:
On 31.12.2020 you had an unfortunate accident at your home cause of miss usage of the
fireworks. This accident accrued from an activity which was totally not related to football.
As a consequence, you couldn’t play football and/or couldn’t join to the trainings for more
than a year because od your negligence and you failed to honor [the employment
contract]. At those times as you know closely that our club supported you both morally
and financially during your difficult health issues and recovery process. Although out club
has the right to terminate the agreement with just cause our club has chosen to honor
[the employment contract] in a good manner and has fulfilled more than its obligations
towards you especially financially.
Although the club has been waiting more than a year from you to complete your
rehabilitation process and honoring [the employment contract] properly, your
performance was far away from your average old performances which was before the
pg. 6
REF. FPSD-7712
accident. During this long period, your inefficient performance forced our club to recruit
another football player for to be able to back-up his squad and had to exceed his budget.
The club has no more time or hope for your lack of football performances after waiting
patiently more than a year by supporting you in a good manner. On the light of these
circumstances, it remains clear that your breaches of [the employment contract]
against the club rendered the continuation of the employment relationship in good faith
intolerable for the club.
Consequently, we hereby terminate [the employment contract] between the parties,
with immediate effect and with just cause, and the club gives you the opportunity to sign
with another football club while the transfer window is not closed yet around the world.
Kindly be informed that the club reserves all of its rights and benefits arising under [the
employment contract] and applicable laws”.
13. On 2 September 2022, the following events took place:
•
the club announced in its official account in the platform Twitter that the
employment relationship with the player had been terminated;
•
the player replied to the Termination Letter and reserved his rights to seek
“the appropriate compensation for the unjustified and untimely termination of his
contract by the club”; and
•
the Turkish Football Federation (TFF) informed the player that the termination
of his employment contract had been dully registered within its system.
14. On 2 December 2022, the player signed a new employment agreement with the Norwegian
club, Bodø/Glimt FK valid as from 1 January 2023 until 31 December 2024. Accordingly, he
would be entitled to a monthly salary of NOK 70,000, plus loyalty bonuses, accommodation
allowance and flight tickets.
II. Proceedings before FIFA
15. On 30 September 2022, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Claim of the player
16. In his claim, the player explained that he suffered an accident in December 2020, spent the
following year in recovery, and was fit to resume his footballing services as from January
2021. Nevertheless, the club unilaterally and abruptly decided to terminate their
employment relationship.
pg. 7
REF. FPSD-7712
17. The player argued that the termination by the club took place without just cause. He made
the following remarks in this respect:
•
On the same day of the termination the club offered the player on loan to HK
Ümraniyespor and such club had agreed to pay a significant part of his
remuneration, corroborating that he was not ineligible to play or having a poor
performance;
•
In contrast, his teammates, coaching and medical staff confirmed that he was
able to fully recover from the accident and did not have any problem with
rendering his services. The player filed several written statements to this extent,
as well as statistics issued by sporting websites indicating that he performed well
during the matches played with the club in the beginning of 2022;
•
In any event, even a proof performance could not be deemed as valid reason to
terminate the employment contract in line with the jurisprudence of the Football
Tribunal and the Court of Arbitration for Sport (CAS);
•
The termination was also not an ultima ratio measure, insofar as no previous
warning was addressed to the player. On the contrary, the club signed a new
foreigner and decided to terminate his contract as a consequence; and
•
There was no link between the termination and the accident suffered in
December 2020. Indeed, the Termination Letter issued by the club clearly stated
that it had already decided to continue with their contractual relationship, hence
it could no longer turn around several months after (nemo potest venire contra
factum proprium).
18. Given the above, the player requested to be awarded the following amounts:
a. EUR 153,214.93 net as outstanding remuneration corresponding to the last
instalment of 2021/2022 season payable on 31 May 2022, plus 5% interest p.a. as
from 1 June 2022 until the date of effective payment.
In this respect, the player alleged that: (i) he should have received EUR 1,708,712 net
for the entire season, out of which the club did only comply with EUR 1,555,497.07
arriving at a balance of EUR 153,214.93; and (ii) the parties signed the Protocol
regarding the amounts due for the 2021/2022 season, but it did only concern to
overdue payables until that date, hence did not include the outstanding
remuneration now sought (i.e., the balance of the instalment due on May 2022).
b. EUR 2,667,709 as compensation for breach of contract corresponding to the residual
value of the employment contract (i.e., the total of EUR 2,844,789 for the 2022/2023
pg. 8
REF. FPSD-7712
season minus the first instalment apparently delivered by the club) plus 5% interest
p.a. as from the 2 September 2022 until the date of effective payment.
The player explained that no mitigation should apply based on the termination
clause included in the employment contract (cf. art. 3, par. 11). He once again
referred to FIFA’s and CAS’ jurisprudence to support his position regarding the
validity, reasonableness, and proportionality of such contractual provision –
especially when compared to the quantum included in the buy-out clause.
19. The player’s requests for relief were as follows, quoted verbatim:
“1. to rule that the Respondent has breached the contract signed between the parties on
17 August 2020, since the Respondent’s unilateral and premature termination of the said
contract on 1st September 2022 was made without just cause;
2. to rule that the Respondent is thus liable to pay the Claimant, apart from any
outstanding remuneration from the contract, compensation for breach of contract, such
breach being the termination of the contract of 17 August 2020 without just cause;
3. to rule that the Respondent shall pay the Claimant the net amount of 153,214.93 Euros
corresponding to the outstanding and due remuneration from the Contract for the
season 2021-2022, with interest of 5% p.a. calculated as of the date the said amount
became outstanding and due and until the date of effective payment;
4. to rule that the Respondent shall also pay the Claimant as compensation for the
premature termination of the Contract without just cause, the amount of 2,667,709
euros, with interest of 5% p.a. calculated as of the day of the termination and until the
date of effective payment;
5. to rule that in the event that the Respondent fails to pay the awarded amounts within
45 days, a ban from registering any new players either nationally or internationally shall
be imposed on the Respondent which shall be lifted only upon full payment of the
awarded amounts”.
b. Reply of the club
20. On 13 October 2022, the club filed its reply to the player’s claim.
21. In doing so, the club stressed that there was no outstanding remuneration due to the
player for the 2021/2022 season. It referred to the Protocol and argued that the amount
now claimed by the player had already been settled via such document and the several
other payments delivered for the duration of the employment contract.
pg. 9
REF. FPSD-7712
22. Subsequently, the club opposed to the player’s allegations regarding the justice for the
termination. It outlined that the accident suffered by the player in December 2020 was not
connected to football (i.e., a negligent act) and prevented him from rendering services for
around 14 months, during which he was paid in full. Consequently, the club claimed that
the factual background of such termination – and especially the player’s fault in the context
of the accident – should be taken into consideration while addressing the matter.
23. Specifically regarding the transfer to HK Ümraniyespor, the club maintained that it would
be a win-win situation for both parties, but with player’s inertia to handle the offer it “was
left no choice but to terminate the contract as it can no longer pay another 14 months’ salary
for nothing”.
24. Alternatively, the club argued that art. 3, par. 11 of the employment contract should not
applied in this case as it only favours the player and is not reciprocal in line with the
jurisprudence of FIFA and CAS. As such, any potential compensation awarded to the player
should take into consideration: (i) the mitigation in case of a new contract; (ii) the long
period of absence of the player due to his own negligence and the circa EUR 1,696,071 that
were paid during his recovery.
25. The club’s requests for relief were as follows, quoted verbatim:
“1.To dismiss the Claim lodged by the Claimant as groundless.
2.To determine that the Club terminated the Contract with just cause.
Alternatively,
1.Taking into consideration of the 14 months salaries totally EUR 1,696,071 paid by the
Club while the Player was injured due to his own negligence, to award that even if the
Club terminated the Contract without just cause, the Club shouldn‘t pay any
compensation.
2. Award any and all costs, expenses and fees arising in connection with the present
arbitration proceedings, including but not limited to the attorney’s fees of the Club”.
c. Rejoinder of the player
26. On 21 November 2022, the player filed his rejoinder.
27. In doing so, he firstly underlined that no harm to his performance was demonstrated by
the club, as well as it could not prove that any previous complaint or warning was ever
addressed by the club. Likewise, he insisted that the club’s intention to loan him to HK
pg. 10
REF. FPSD-7712
Ümraniyespor (i) played against its allegations of poor performance; and (ii) could not be
held against him as a reason for the termination of the employment contract.
28. Additionally, the player stressed that the conditions of his accident in 2020 were no longer
relevant for this dispute because the club had already confirmed its intention to retain his
services and was therefore prevented to invoke such circumstances as valid reasons for
the termination.
29. In continuation, the player turned to the consequences of the termination and insisted that
art. 3, par. 11 of the employment contract should be applied in the case at hand. He
furthermore argued that such discussion is moot considering that he was not able to find
a new employment until that date, entailing that the quantum of compensation would be
exactly the same as if calculated in line with the other elements of art. 17 of the FIFA
Regulations on the Status and Transfer of Players (RSTP). Thus, he repeated his position as
to sum owed by the club.
30. Finally, the player also insisted on his entitlement to the outstanding remuneration sought.
In short, he reiterated that the club did only pay EUR 160,970.07 out of the EUR 314,356
corresponding to the instalments due on 31 May 2022, therefore the balance was still due
accrued with the respective interest.
31. Having established the above, the player echoed his requests for relief per the statement
of claim.
d. Final comments of the club
32. On 28 November 2022, the club filed its final comments on this matter.
33. Initially, the club reiterated its position as to the termination with just cause by the club
due to financial burden undertaken in good faith because of the player’s accident.
34. As to the compensation clause, the club argued that it could not be considered reciprocal,
nor could it be compared to the buy-out clause as such provisions have completely
different legal natures. Likewise, awarding the player the entire residual value of the
employment contract would amount to unjust enrichment.
35. Lastly, the club once again disputed the player’s position as to the outstanding
remuneration. In this respect, the club stated that the player was paid “the minimum wage
for season 2021-2022” as it was done in the previous season and was not disputed by the
player. Consequently, it considered that the same reasoning should be applied because
tacitly accepted by the player.
36. In conclusion, the club urged FIFA to “take into consideration of the specificity of the current
case, especially the good faith of the Club towards the Player since the beginning of his injury,
pg. 11
REF. FPSD-7712
and million of euros the Club paid for nothing but the only hope that the Player could recover.
Also, the negligence of the Player himself which was the cause of everything. The Club did more
than it should, which shouldn’t be used again itself”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
37. 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 September 2022 and
submitted for decision on 30 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.
38. 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. 1 lit. b)
of the FIFA RSTP (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 Norwegian player and a Turkish club.
39. 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 FIFA RSTP (October 2022 edition), and considering that the present claim was
lodged on 30 September 2022, the July 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
40. 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 Transfer Matching System (TMS).
c. Merits of the dispute
41. 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
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REF. FPSD-7712
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
42. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim of a player against a club for
outstanding remuneration and compensation for breach of contract.
43. In particular, the club terminated the employment contract on 1 September 2022. The
parties dispute the justice of such termination and the consequences that follow, which
shall be assessed by the DRC.
44. In this context and as a departure point, the Chamber highlighted that it remained
undisputed between the parties that:
•
On 31 December 2020, the player suffered an accident while handling fireworks
during the New Year’s Eve, which compromised his vision and his capacity to play
football for around a year (2021);
•
In the beginning of 2022, the player had recovered from the accident and
participated in some matches for the club from February until August 2022;
•
On 1 September 2022, the club reached out to the player regarding an offer for
his temporary transfer to HK Ümraniyespor. The loan was not confirmed as the
player failed to accept the deal within the one-day deadline granted; and
•
Also on 1 September 2022 and upon acknowledging that the abovementioned
loan would not take place, the club notified the player of the termination of their
employment relationship by means of the Termination Letter.
45. The Chamber further observed that, per the Termination Letter, the club grounded the
premature end of their employment relationship on the player’s unsatisfactory
performance after the accident. In particular, the club highlighted its good faith during the
player’s long recovery but asserted that (i) it could not continue with the employment
relationship due to the financial burden involved; therefore (ii) it decided to terminate the
employment contract at that specific moment to enable the player to find a new
employment and mitigate his damages.
46. Against this background and having carefully analysed the wording of the Termination
Letter, the Chamber referred to its well-established jurisprudence according to which:
•
only a breach or misconduct that is of a certain severity justifies the termination
of a contract. In other words, only when there are objective criteria which do not
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REF. FPSD-7712
reasonably permit the expectation that the continuation of the employment
relationship between the parties can continue, a contract may be terminated
prematurely. Hence, if there are more lenient measures which can be taken in
order for an employer to ensure the employee’s fulfilment of his contractual
duties, such measures must be taken before terminating an employment
contract. A premature termination of an employment contract can only ever be
an ultima ratio measure; and
•
a player’s poor performance cannot be a valid reason for an employer to
terminate an employment contract, as this is a purely unilateral and subjective
evaluation by a club and/or a member association. Likewise, potestative clauses,
i.e., clauses that contain obligations which fulfilment are conditional upon an
event that one party entirely controls, can in general not be applied, since they
limit the rights of the other contractual party in an excessive manner and lead
to an unjustified disadvantage of the latter towards the other.
47. While considering all the above, the Chamber was satisfied with the conclusion that the
termination by the club took place without just cause. In particular, the DRC found it
decisive that: (i) the Termination Letter clearly stated that the accident suffered of the
player was not the reason per se for the premature end of their contractual relationship,
but rather his alleged poor performance after the recovery; and (ii) the club also failed to
advance any proof that it had ever put the player in default and/or informed him of any
potential contractual breaches. In contrast, the documentation on file suggests that the
club at some point lost interest in retaining the player’s services and decided to terminate
the employment contract without being legally entitled to do so, hence without just cause.
48. The DRC was furthermore comforted with the abovementioned conclusion while
considering that the player’s accident took place in December 2020 whereas the
employment contract was terminated in September 2022. As such, in case the accident was
indeed the reason for the termination, the Chamber deemed that it should have been
raised by the club straight away and not after almost two years. As it was not, the club is
now prevented from invoking the accident as a valid argument to justify the termination in
line with the principle venire contra factum proprium). Likewise, the Chamber outlined that
the Termination Letter is clear and unequivocal to establish that (i) the club accepted “in
good faith” to continue with the employment contract; and (ii) such termination was linked
to the player’s performance only; therefore, limiting the DRC’s scope of analysis in that the
accident cannot be deemed material to the termination of the employment contract.
49. Considering the foregoing, the Chamber decided that the employment contract was
terminated by the club on 1 September 2022 without just cause, entailing that it shall be
liable to the consequences that follow.
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REF. FPSD-7712
ii. Consequences
50. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
51. First and foremost, the Chamber observed that the player claimed EUR 153,214.93 net as
outstanding remuneration, corresponding to the balance of the instalment due by the club
in May 2022. On the other hand, the club disputed his entitlement to such amounts by
referring to the Protocol concluded between the parties and to the minimum wage
established in the employment contract, which was allegedly delivered to the player.
52. In view of this dissent between the parties, the Chamber initially considered that the
player’s claim is contractually based, therefore the club bore the burden of proof to
demonstrate that it fulfilled its financial duties and/or was legally authorized not to do so.
53. On this note, the DRC acknowledged that the Protocol was signed by the parties in
December 2021 and did only rearrange their obligations until that date, therefore being
immaterial to the discussion of the unpaid amounts which fell due in May 2022.
Furthermore, the Chamber was also not convinced by the club’s argumentation regarding
the player’s acceptance of a minimum salary cf. art. 3, par. 2 of the employment contract.
On the contrary, it was the DRC’s opinion that the mens legis behind such provision was
precisely the opposite: to guarantee that the player would be entitled to a minimum sum
after the tax deductions, providing him with some degree of legal certainty as to the annual
remuneration. Nevertheless, the cited clause does not entitle the club to deviate from the
payments expressly agreed upon, such as the one claimed.
54. In parallel, the Chamber also noted that the proof of payments filed by the club were not
conclusive to this end because there is no specific reference to the amount due in May
2022, as well as the club did not provide any explanation as to the allocation of the amounts
effectively paid.
55. Consequently, the DRC decided that as the club could not establish to a comfortable
satisfaction degree that it complied with its contractual obligations (cf. art. 13, par. 5 of the
Procedural Rules).
56. It followed, it the Chamber’s view, that the player should be entitled to concept sought.
Nevertheless, while considering the wording of art. 3, par. 2 of the employment contract,
the DRC noted that EUR 397,112 gross minus the 20% of the tax deductions totalled EUR
317,689.60. Consequently, as the player acknowledged receipt of EUR 160,970,07, he
should in principle be entitled to EUR 156,719.53 net instead of the EUR 153,214.93 net
claimed.
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REF. FPSD-7712
57. Notwithstanding the above, and based on the principle of ne ultra petita, the DRC decided
that he shall be awarded EUR 153,214.93 net as requested, plus 5% interest as from the
due date (i.e., 1 June 2022) until the date of effective payment in line with the constant
practice of the Chamber in this regard.
58. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
59. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract.
60. At this point, the Chamber recalled the contents of clause 11 of the employment contract,
as follows:
“11. In the case of the Club falling to pay the Player at least two monthly salaries on their
due dates, the Player must send a written notice to the Club and must allow 15 days for
payment. If the Club falls to fulfill Its financial obligations within this 15-day period, the
Player will have right to terminate the Contract with just cause Immediately without
paying any compensation and he will be entitled to receive by the Club, as an agreed
compensation for the termination of the Contract, an amount equal to the residual
value of the contract. The same agreed compensation shall be payable by the Club
in case the Contract is terminated by the Player with just cause for any other
reason or by the Club without just cause” (emphasis added).
61. With the above in mind, the Chamber noted that the club claimed that such clause is not
reciprocal nor proportional, hence shall not be applied in the case at hand. Nevertheless,
the DRC highlighted that – as also indicated by the player – the jurisprudence of the Football
Tribunal is solid to establish that “any clause that provides that the payable compensation will
amount to the remaining value of the contract is proportionate by definition” (cf. Commentary
to the Regulations on the Status and Transfer of Players – p. 143).
62. On top of the above, the DRC deemed that the club – as the draftsparty of the employment
contract and the strongest link in the employment relationship – could not benefit from its
tort and argue that such contractual set-up was imbalanced for the player’s side. In
pg. 16
REF. FPSD-7712
addition, the club could also not benefit from its alleged “good faith” in the context of the
accident to evade (or mitigate) its contractual obligations, moreover, there is also no
regulatory basis for such reasoning.
63. Based on the aforementioned considerations, the DRC concluded that the player should
be entitled to the residual value of the employment contract (i.e., EUR 2,667,709) as
compensation for its unilateral and premature breach.
64. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said
compensation at the rate of 5% p.a. as of the date of the termination of the employment
contract (i.e., 1 September 2022) until the date of effective payment
iii. Compliance with monetary decisions
65. 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.
66. 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.
67. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
68. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
69. 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-7712
d. Costs
70. 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.
71. 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.
72. 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-7712
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Omar Elabdellaoui, is partially accepted.
2.
The Respondent, Galatasaray AS, must pay to the Claimant the following amount(s):
- EUR 153,214.93 net as outstanding remuneration plus 5% interest p.a. as from 1 June
2022 until the date of effective payment; and
- EUR 2,667,709 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 1 September 2022 until the date of effective payment.
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-7712
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. 20