Labour Disputes
Texto da decisão
REF. FPSD-11869
Decision of the
Dispute Resolution Chamber
passed on 19 February 2024
regarding an employment-related dispute concerning
the player Pedro Nuno Fernandes Ferreira
BY:
Frans DE WEGER (The Netherlands), Chairperson
Stijn BOEYKENS (Belgium), member
André DOS SANTOS MEGALE (Brazil), member
CLAIMANT:
Pedro Nuno Fernandes Ferreira, Portugal
Represented by Caglar Akoglu
RESPONDENT:
Adanaspor A.S., Türkiye
pg. 2
REF. FPSD-11869
I. Facts of the case
1.
On 31 August 2022, the Portuguese player, Pedro Nuno Fernandes Ferreir (hereinafter:
player or Claimant) and the Turkish club, Adanaspor (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: the contract), valid as from 1 October
2022 until 31 May 2023.
2.
In accordance with clause 3 of the contract, the club undertook to pay to the player – inter
alia – a total fixed remuneration of EUR 64,000 net, as follows:
-
EUR 7,100 as monthly salary between October 2022 and May 2023 (8 salaries), as
follows:
- EUR 7,100 by 30 October 2022;
- EUR 7,100 by 30 November 2022;
- EUR 7,100 by 1 January 2023;
- EUR 7,100 by 31 January 2023;
- EUR 7,100 by 28 February 2023;
- EUR 7,100 by 1 April 2023;
- EUR 7,100 by 30 April 2023;
- EUR 7,100 by 31 May 2023;
-
EUR 7,200 by 1 July 2023 as lump sum.
3.
In addition, the club undertook to pay to the player – also as per clause 3 of the contract –
match bonuses in case of victory and depending on the player’s participation in the relevant
matches.
4.
As per clause 3 of the contract, the club undertook to pay provide the player with
accommodation or to pay for the relevant housing rent.
5.
Under clause 13 of the contract, the parties agreed that, in case of legitimate suspension
of the relevant competition, the player would only receive the mandatory minimum wage
during the relevant period. The said clause further states the following: “The Club’s right to
reduce the salary in accordance with the financial loss the club suffered due to the fact which
caused the delay / suspension and the delay /suspension itself is reserved. In such a case, the
Parties will mutually decide the amount / rate of reduction. If the Parties cannot reach a mutual
agreement, the Club will solely decide on the reduction, subject to the satisfaction of an objective,
proportionate and fair determination. In case the leagues are cancelled, the remuneration will
be paid in accordance with the pro rata calculation based on the number of matches that are
actually played.”
6.
Clause 28 of the contract states, inter alia, the following: “[…] payment of bonusses, in case it
is decided at the sole discretion of the CIub. will be made in cash in exchange for a receipt or to
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REF. FPSD-11869
the player's bank account, with the payment description of "bonus". The payments which do not
hold such a description will not be considered as bonus payments.”
7.
On 6 February 2023, Türkiye suffered a series of earthquakes, affecting – approximately –
14 million people and different regions of the country, including the province of Adana,
where the club is based.
8.
On the same date, the player flew to Portugal, his home country, apparently with the
permission of the club.
9.
On 7 February 2023, the Turkish Football Federation (hereinafter: TFF) suspended all
football activities in the country.
10. On 10 February 2023, the club withdrew from the relevant competition in Türkiye, with the
consent of the TFF.
11. The football competitions were resumed in Türkiye, by decision of the TFF, on 3 March
2023.
12. On 3 March 2023, the club allegedly requested the players of the team to request the club
to grant a permission to them in order for the players to cease rendering their contractual
services for the club
13. On the same date, the player sent a message to the club with the following content:
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REF. FPSD-11869
14. Thereto, the club replied on 17 March 2023, informing the player of the following:
15. By means of his letter dated 3 August 2023, the player put the club in default of payment
in the amount of EUR 57,000, corresponding to the unpaid part of the fixed remuneration
due to him under the contract, thereby granting the club a deadline of 10 days to cure its
breach.
16. The player signed a new contract with the Azerbaijani club, Sabail PFC, valid as from 26 June
2023 until 30 June 2024, whereby the player is entitled to receive a total fixed remuneration
of USD 130,000.
II. Proceedings before FIFA
a. Position of the Claimant
17. On 20 September 2023, the Claimant lodged a claim against the Respondent before the
Football Tribunal, requesting to be awarded outstanding remuneration in the total amount
of EUR 57,000, plus interest (no specification provided as to the interest requested) as from
the respective due dates until the date of effective payment, broken down by the Claimant
as follows:
-
EUR 100 corresponding to the unpaid part of the salary of October 2022;
-
EUR 49,700 corresponding to the salaries payable between November 2022 and May
2023 in the amount of EUR 7,100 each (7 salaries);
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REF. FPSD-11869
-
EUR 7,200 corresponding to the lump sum payable by July 2023.
18. In his claim, the player argued that it was the sole decision of the club to withdrew from
the competition on 10 February 2023, even though other clubs, such as Adana Demirsport,
remained in the competition, which resumed short after its suspension and continued until
its initial ending date.
19. In this context, the Claimant held that he remained under contract with the Respondent
until the date of expiration of the contract, reason why the Respondent shall be ordered to
pay the amounts due to him as per the contract.
b. Position of the Respondent
20. In its reply, the Respondent argued that, on 7 February 2023, the TFF decided to postpone
the league and that it was in that context that the club withdrew from the relevant
competition in Türkiye.
21. The Respondent further argued that, as from 6 February 2023, the player ceased rendering
his contractual services for the club and even left Türkiye.
22. The Respondent underscores that, out of the total fixed remuneration due to the player
under the contract, i.e. EUR 64,000, only the amount of EUR 28,921 is due to the player, as
such amount corresponds to the pro-rata remuneration payable between 1 October 2022
and 6 February 2023.
23. The club also held that the argument of the player as to the participation of other clubs of
the same city in the relevant competition - which would demonstrate that the Respondent
withdrew from the competition willingly and unnecessarily – cannot be accepted, as “the
earthquakes did not affect all areas of the city the same and some buildings were undamaged,
where the ones used to stand next to those undamaged were demolished.”
24. That, in any case, the allegations of the Claimant as to the payments received and not
received by the latter from the club are false, as the Respondent duly paid to the Claimant
the total amount of EUR 16,000 and TL 40,125, which equals EUR 17,257:
-
EUR 16,000 on 29 August 2022;
-
TL 5,625 on 30 September 2022;
-
TL 7,500 on 11 November 2022;
-
TL 7,000 on 2 December 2022;
-
TL 20,000 on 20 January 2023.
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REF. FPSD-11869
c. Replica of the Claimant
25. In his replica, the player maintained – inter alia – the following:
-
That he left Türkiye on 6 February 2023 with the permission of the club, as the
team’s coach authorized 3-4 days leave to all the players after a match played
against Altay.
-
That it was the club the party that, on 3 March 2023, requested the players to
send messages to the club asking to be granted permission to stop performing
their footballing activities for the club, context within which the player sent the
message of the same date to the club.
-
That the club failed to provide alternatives for the performance of footballing
activities.
-
That the club only granted the referred permission 15 days after the player
requested it and that, during that time, the player was not given any instructions
as to the continuation of his contractual services which were non-existent as the
club withdrew from the league.
-
That the FTT was granting all affected clubs many options in order for the clubs
to continue with their activity, but the club simply decided to withdraw from the
competition.
-
That it is clear that the player could not render his services for the club as from 6
February 2023 due to the sole decision of the club to stop participating in the
league, which rendered the subject-matter of the contract impossible to fulfil.
-
In this context, the Claimant argues that the club did not thereby terminate the
contract unilaterally, but made it impossible for the parties to continue respecting
it, but that the contract expired on its ending date, i.e. by 31 May 2023.
26. As for the amounts due, the player rejected the allegations and calculations of the
Respondent and specified the following in connection with the amounts indicated by the
counterparty:
-
EUR 16,000 paid on 29 August 2022: the player argues that this payment corresponds
to a sign-on bonus, evidence of which is the fact that the club paid it before the
contractual term started.
-
TL 5,625 paid on 30 September 2022;
-
TL 7,500 on 11 November 2022;
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REF. FPSD-11869
-
TL 7,000 on 2 December 2022;
-
TL 20,000 on 20 January 2023.
27. Concerning the subsequent payments (performed in Turkish Lira), the player did not deny
having received them but argued that those correspond to match bonuses, evidence of
which is that: A.) the amount of such payments does not match the amount payable to the
player as monthly salary and; B.) in the corresponding payment evidence submitted by the
club there is no mention as to the consideration of said payments, reason why it cannot be
considered that those hold the nature of salary payments.
28. Lastly, the player reiterated his previous arguments, as well as his previous request for
relief.
d. Final comments of the Respondent
29. In its final comments, the club reiterated its previous arguments, rejected the allegations
of the Claimant and underscored, inter alia, the following:
-
That the player left Türkiye to travel to Portugal on 6 February 2023 without the club’s
authorization and that the player is not providing any evidence in the contrary;
-
The club rejected the arguments of the player that the payments performed in TL
correspond to match bonuses, as clause 28 of the contract states that every bonus
payment will hold the word “bonus” as payment consideration and that the player
never disputed such event until now;
-
That the allegations of the Claimant concerning the payment of EUR 16,000 as signon fee are groundless as they are not supported by the contract and, in this respect,
the Respondent explained that such payment was an advance payment, as the
player requested it in order to cover his expenses.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. 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 20 September 2023 and
submitted for decision on 19 February 2024. 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.
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REF. FPSD-11869
31. 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 Portuguese player
and a Turkish club.
32. 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 (February 2024 edition) and
considering that the present claim was lodged on 20 September 2023, the May 2924 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
33. 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
34. 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.
i. Main legal discussion and considerations
35. The foregoing having been established, the Chamber moved to the substance of the matter
and stated that – upon a careful analysis of the positions of the parties and of the
documentary evidence provided by them within the scope of the present proceedings –
the following events have either remained undisputed, or been proven or acknowledged
by the parties:
-
The club, since the start of the contractual relationship, made payments to the
player in the total value of EUR 17,257.
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REF. FPSD-11869
-
The club failed to provide accommodation to the player or to pay a housing rent.
-
On 6 February 2023, Türkiye suffered a series of earthquakes, affecting – inter alia
– the province of Adana, where the club is based.
-
On the same date, the player flew to Portugal, his home country, and never
returned to Türkiye.
-
On 7 February 2023, the Turkish Football Federation (TFF) suspended all football
activities in the country.
-
On 10 February 2023, the club withdrew from the relevant competition in Türkiye.
-
On 3 March 2023, the football competitions were resumed in Türkiye, by decision
of the TFF.
-
On the same date, the player – upon request from the club – requested to be
granted an authorization to cease rendering his services and informed the club
that he would start searching for another club, unless the club wanted him to join
the club.
-
The club granted said authorization to the player on 17 March 2023.
-
No more correspondence was exchanged between the parties until the default
notice sent by the player to the club on 3 August 2023.
36. First of all, the Chamber noted that the present case is affected by the extraordinary
situation that took place in Türkiye upon the devastating earthquakes suffered in the
country on 6 February 2023, which led to a situation that was neither foreseen nor
foreseeable by the parties involved in the matter at hand. Thus, the actions undertaken by
the latter shall be analyzed under a more sensitive lens.
A.) Was the contractual relationship terminated by either party?
37. The DRC explained that, even though it is undisputed that events such as the player leaving
Türkiye without authorization on 6 February 2023 to return to his home country or such as
the club withdrawing from the relevant competition on 10 February 2023, at a moment in
time when the club could have remained in the competition, took place – in view of the
extraordinary circumstances triggered by the earthquake – neither action can be
contemplated as an act of bad faith or a disproportionate measure that could lead this
chamber to establish that either party terminated the contract.
38. However, it is important to note, continued the DRC, that – thereafter – on 3 March 2023,
football competitions were resumed in Türkiye. Thus, It was at that moment in time that
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REF. FPSD-11869
both parties needed to observe the necessary diligence to resume or at least attempt to
resume their contractual obligations. As from this date, continued the Chamber, the
actions undertaken by the parties need to be analyzed: 1.) the letter of the player to the
club whereby the former requests the latter to grant an authorization to stop rendering his
contractual services for the club, informs the club that he is searching for another club and
informs the club that, should it wish the player to return to Türkiye and fulfil his contractual
obligations, the club shall provide accommodation to the player; 2.) the letter of the club
to the player of 17 March 2023, whereby the club confirms that the player is free to search
for another club until the end of the 2022/2023 season, which coincides with the end of the
contract.
39. Therefore, the Chamber concluded that neither party unilaterally terminated the contract,
but that both parties mutually decided to put an end to it on 17 March 2023, when the club
accepted the request of the player and released him from his contractual obligations for
the season 2022/2023.
B.) What are the financial consequences of the mutual termination of the contract?
40. In this regard, the DRC established that the duration of the contract shall be split in 3 parts:
-
1st part (from 1 October 2022 until 10 February 2023): this is the period between
the start of the contract and the date on which the club withdrew from the
competition. The DRC determined that the player shall receive his remuneration
normally, as per the contract (pacta sunt servanda).
-
2nd part (from 11 February 2023 until 3 March 2023): during this period, the club
could have benefitted, as per clause 13 of the contract, from paying to the player
the minimum wage, insofar as – during this period – the competition was
suspended in the country. However, since the club is not bringing up any such
argument, the Chamber decided that the player shall be fully remunerated as per
the contract during this period.
-
3rd part (from 4 March 2023 to 17 March 2023): during this period, the club
awaited in silent before granting the authorization to the player to search for a
new club. Thus, the DRC decided that, during this time, the contract was fully in
force and the player is entitled to receive all his financial dues.
41. Consequently, the Chamber decided that the club shall pay the player’s full remuneration
since the beginning of the contract and until 17 March 2023. In this context, the DRC noted
that it is undisputed that the club paid to the player the total amount of EUR 17,257 since
the date on which the parties signed the contract.
42. In this regard, although the player argues that the amount of EUR 16,000 was paid as a
sign-on fee and that the remainder amount of EUR 1,257 was paid as match bonuses, the
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REF. FPSD-11869
Chamber highlighted that the former of the premises lacks a contractual basis and such
eventual agreement has not been proven by the Claimant with any sort of evidence and
that, as to the latter of the amounts, the Claimant has not met his standard of proof (cf. art.
13 para. 5 of the Procedural Rules), as the Claimant has not been able to provide any
evidence of matches (won or drawn) in relation to said payment. Therefore, the DRC
determined that the amount of EUR 17,257 shall be deducted from the player’s financial
dues under the contract.
ii. Consequences
43. Having stated the above, the members of the Chamber turned their attention to the
consequences of the Respondent’s behaviour and concluded that, by virtue of the legal
principle pacta sunt servanda, the Claimant is entitled to the total amount of EUR 27,130 as
outstanding remuneration, on the following grounds:
-
Total due remuneration (from 1 October 2022 to 17 March 2023): EUR 44,387;
-
Total amount paid by the club during said timeframe: EUR 17,257;
-
Total amount outstanding: EUR 27,130.
44. In this respect, considering that the player’s remuneration is payable in instalments that
also comprehend a payment due after the expiration date of the contract, the DRC decided
to calculate the pro-rata monthly salary of the player, which amounts to EUR 8,000 net per
month (from October 2022 to May 2023).
45. As for the default interest, considering that there were different payments performed
throughout the duration of the contract and that the Claimant is not even requesting a
specific interest rate to be granted, the Chamber decided that, in accordance with the
Claimant’s request as well as with the constant practice of the Chamber in this regard, the
Claimant shall be awarded interest of 5% p.a. as from the date on which the claim was
lodged, i.e. as from 20 September 2023 until the date of effective payment.
iii. Compliance with monetary decisions
46. 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.
47. 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.
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REF. FPSD-11869
48. The overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
49. 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.
50. 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.
51. 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.
d. Costs
52. 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.
53. 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.
54. 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-11869
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Pedro Nuno Fernandes Ferreira, is partially accepted.
2.
The Respondent, Adanaspor, must pay to the Claimant the following amount(s):
- EUR 27,130 as outstanding remuneration plus 5% interest p.a. as from 20 September
2023 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.
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REF. FPSD-11869
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
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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