Dispute Resolution Chamber
Texto da decisão
REF 20-01315
Decision of the
Dispute Resolution Chamber
passed on 3 June 2021
regarding an employment-related dispute concerning the player Loris KARIUS
COMPOSITION:
Clifford J. Hendel (USA/France), Deputy Chairman
Mohamed Muzammil (Singapore), member
Stefano Sartori (Italy), member
CLAIMANT:
Loris KARIUS, Germany
Represented by Mr Horst Kletke
RESPONDENT:
Beşiktaş JK, Turkey
Represented by Mr Hasan Femi Demir
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I.
FACTS OF THE CASE
1.
The Turkish club, Beşiktaş JK (hereinafter: Beşiktas or Respondent / Counter-Claimant) and
Liverpool FC (hereinafter: Liverpool or Counter-Respondent 2) concluded a contract for the
loan of the player Loris Karius (hereainfter: player or Claimant / Counter-Respondent 1) from
Liverpool FC to Beşiktas from 25 August 2018 until 31 May 2020.
2.
According to the respective loan agreement, Beşiktas had to pay Liverpool FC a loan fee of
EUR 2,500,000.
3.
On 28 August 2018, the player and Beşiktas concluded an employment contract
(hereinafter: contract), valid as from the date of signature until 31 May 2020.
4.
According to art. 4 of the contract, said contract would be extended until 31 May 2023 if
Beşiktas exercises its option to acquire the player on a permanent basis from Liverpool.
5.
Pursuant to art. 6 of the contract, Beşiktas undertook to pay to the player, inter alia, the
following remuneration:
Season 2018/2019: total salary of EUR 1,750,000 in ten equal instalments of EUR
175,000 due on the last day of the month between 31 August 2018 and 30 May 2019,
Season 2019/2020: total salary of EUR 2,100,000 in ten equal instalments of EUR
210,000 due on the last day of the month between 31 August 2019 and 30 May 2020.
Attendance fees:
Season 2018/2019, in case the player is fielded as first 11:
o In 10 official matches (excluding Turkish Cup matches) the club shall pay the
player EUR 50,000
o In 20 official matches (excluding Turkish Cup matches) the club shall pay the
player EUR 125,000
o In 30 official matches (excluding Turkish Cup matches) the club shall pay the
player EUR 200,000
o In 40 official matches (excluding Turkish Cup matches) the club shall pay the
player EUR 300,000
Season 2019/2020, in case the player is fielded as first 11:
o In 20 official matches (excluding Turkish Cup matches) the club shall pay the
player EUR 100,000
o In 30 official matches (excluding Turkish Cup matches) the club shall pay the
player EUR 175,000
o In 40 official matches (excluding Turkish Cup matches) the club shall pay the
player EUR 250,000
The attendance fees are net and non-cumulative and the player shall be entitled
only to the fee for the highest achievement in the respective season. If due, the
attendance fee shall be paid on 31 July 2018 and 31 July 2019.
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6.
On 2 March 2020, the player put the Beşiktas in default of payment of EUR 808,000 until
14 March 2020.
7.
On 15 April 2020, the player again put Beşiktas in default setting a deadline until 25 April
2020 to proceed to the payment of the total amount of EUR 1,021,500.
8.
On 30 April 2020, Beşiktas paid an amount of EUR 367,499.99 to the player for the months
of November and December 2019 as well as EUR 9,000 in housing costs for the months of
October to December 2019.
9.
On 4 May 2020, the player terminated the contract.
10.
On 4 June 2020, the Dispute Resolution Chamber (hereinafter: DRC) decided upon a first
claim of the player with respect to outstanding remuneration from November 2019 to
February 2020 (ref. 20-00497). Beşiktas was condemned by the DRC to pay the Claimant
the amount of EUR 425,500.01 plus interest.
11.
On 30 July 2020, the Respondent paid the amount of EUR 420,000 and EUR 12,000 in
respect of the DRC’s decision of 4 June 2020.
12.
On 20 July 2020, the DRC decided upon a second claim of the player with respect to
outstanding remuneration for the months of March and April 2020 (ref. 20-00748).
Beşiktas was condemned by the DRC to pay the Claimant the amount of EUR 426,000 plus
interest.
13.
The player rejoined Liverpool after the expiry date of his contract with Beşiktas.
II.
PROCEEDINGS BEFORE FIFA
14.
On 16 September 2020, the Claimant / Counter-Respondent 1 filed a claim for outstanding
remuneration and compensation for breach of contract against the Respondent / CounterClaimant before FIFA. The Respondent / Counter-Claimant reacted to such claim by filing a
counter-claim against the player. The FIFA administration considered Liverpool a party to
the proceedings in light of the potential consequences arising from the player’s unilateral
termination of the contract under art. 17 par. 2 and par. 4 of the Regulations on the Status
and Transfer of Players.
15.
A summary of the parties’ respective positions is detailed below.
a.
16.
The claim of the player
In support of his claim, the player recalled that he had addressed several default notices to
Beşiktas as well as the fact that he had previously filed to subsequent claims for outstanding
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remuneration, one for outstanding salaries between November 2019 and February 2020,
and the other for outstanding salaries for March and April 2020.
17.
Furthermore, the player emphasised that he is entitled to a further amount of EUR
27.096,77 for 4 days in May 2020, in light of the fact that he terminated the contract on 4
May 2020.
18.
The player deems that, considering the multiple breach by the Respondent of its financial
obligations, he was entitled to terminate the contract with just cause in accordance with
art. 14bis of the RSTP.
19.
The player also highlighted that, since he did not have any other earnings in May 2020, he
is entitled to compensation corresponding to the days between 5 and 31 May 2020.
20.
The player further emphasised that the Respondent did not exercise its option to acquire
the registration of the Claimant on a definitive basis, so that the contract was not extended
beyond 31 May 2020. The Claimant returned to his former club, Liverpool, on 1 June 2020.
21.
Finally, the player claimed that he is entitled to attendance fees pursuant to Article 6 B) of
the contract, in the amount of EUR 100,000 for the 2019/2020 season since he player in
25 championship matches of the Turkish first league (Superlig).
22.
The requests for relief of the Claimant / Counter-Respondent 1, were the following:
b.
EUR 210,000 regarding the month of May 2020 plus 5% interest as of 31 May
2020,
EUR 100,000 in attendance fees plus 5% interest as of 31 July 2020,
The Respondent / Counter-Claimant shall be ordered to pay procedural costs,
Sanctions against the Respondent / Counter-Claimant in accordance with art. 12bis
of the Regulations on the Status and Transfer of Players.
Position of Beşiktas and counter-claim
23.
Beşiktas rejected the player’s claim and lodged a counterclaim against the latter.
24.
In support of its position, the Respondent / Counter-Claimant referred to the Covid-19
pandemic and explained that on 19 March 2020, the Turkish Football Federation (TFF) had
decided to suspend all national leagues and cup competitions until further notice. Starting
from this date, the player did not provide any services to Beşiktas.
Beşiktas specified that it decided to wait in order to analyse the effects of the Covid-19
pandemic as well as to wait for the final decision of the TFF regarding the resuming of the
2019/2020 football season in Turkey in order to negotiate with its players and technical
staff about possible variations to their contracts. In this sense, starting from the decision of
25.
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the TFF to suspend all leagues and cup competition matches, it stopped paying the player’s
income in light of the fact that it could no longer generate any income.
26.
With respect to the claim for attendance fees, the Respondent clarified that the player had
in fact played a total of 30 matches and thus he was entitled to a total amount of EUR
175,000. The Respondent stated that it had paid that amount on 1 October 2020 and it
shall be deemed that it has fulfilled its obligation in that respect.
27.
With respect to the unilateral termination of the contract by the Claimant / CounterRespondent 1, the Respondent / Counter-Claimant stated that the player had failed to
proceed to the termination in accordance with art. 14bis of the Regulations on the Status
and Transfer of Players since, in his default notice, he had granted Beşiktas only 10 days
whereas, according to the said provision, he should have granted them 15 days.
28.
According to Beşiktas, the player’s unilateral termination of the contract was based on
unpaid remuneration for the months of January, February and March 2020; however, the
Claimant had already lodged a claim (ref. 20-00497) regarding the salaries of January and
February 2020. The Respondent made the following statement in this regard: “In other
words, the Claimant first exercised his right under article 12bis of the FIFA RSTP to claim his
remuneration until the end of February 2020 and then whilst this case was pending, made
the same amounts subject to the notice dated 15 April 2020 and the termination notice
dated 4 May 2020 to unlawfully terminate the Contract”.
29.
Beşiktas concludes that the player was not entitled to make the same amounts subject to
two different proceedings.
30.
In continuation, the Respondent / Counter-Claimant held that the player was not entitled
to any remuneration starting in March 2020 due to the suspension of the League. In its
opinion, “As no service was provided by the Claimant during this term and that leagues
were suspended, the Employment Contract as well as all other employment contracts
signed between the Respondent and other players and technical staff were suspended,
pending the decision of TFF to resume the leagues”.
31.
According to Beşiktas, the player has shown no understanding for the club’s financial
difficulties due to the Covid-19 pandemic.
32.
Beşiktas further deemed that, considering the player had not provided any services to the
Respondent during the time of the League was suspended, it had the right to suspend all
payments until the player would resume his services. In this regard, Beşiktas highlighted
that the League eventually resumed on 12 June 2020, however the player had already
terminated the contract at the time.
The Respondent / Counter-Claimant underlined that, as from 12 June 2020, it was able to
reach out to its players and technical staff in order to negotiate a 15% reduction of their
salary for the season 2019/2020, offer which the majority of the staff allegedly accepted.
33.
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Since the Claimant / Counter-Respondent 1 had already terminated the contract, no such
negotiations could take place.
34.
Finally, the Respondent / Counter-Claimant referred to art. 6 par. 10 of the contract and
stated that the Claimant had not respected the formal requirements indicated therein, since
he sent his various default notices by e-mail and not to the club’s official address.
35.
Beşiktas concludes that the player terminated the contract without just cause and claimed
compensation corresponding to the unamortised part of the loan fee it had to pay to
Liverpool in order to acquire the Claimant’s services. In this regard, the Respondent /
Counter-Claimant made the following calculation: “At the date of termination, the
unamortised part of the total loan fee is equal to EUR 297.619 (2.5 months since
the Claimant/Counter Respondent has not provided any service to the Club starting
from 15 March 2020 – suspension of the competitions – an deprived the club from using
his services until the new end of the 2019/2020 season)”.
36.
The requests for relief of the Respondent / Counter-Claimant were the following:
c.
Dismiss the Claimant’s claim,
Order the Claimant to pay the Respondent EUR 297,619 as compensation for the
unlawful termination of the contract.
Player’s reaction to Beşiktas’ counter-claim
37.
In reaction to Beşiktas’s counterclaim, the player first confirmed having received the amount
of EUR 175,000 in respect of the attendance fees and considers the matter as partially
settled.
38.
Furthermore, the player upheld his claim regarding the amount of EUR 210,000 for the
salary of May 2020 and rejected Beşiktas’ counter-claim.
39.
In this regard, the Claimant / Counter-Respondent 1 first denied that the termination letter
was served by e-mail only, as he also delivered it in person to the Director of Football
Operations.
40.
Furthermore, the player highlighted that Beşiktas had been in delay of payment of his
remuneration throughout the entire duration of the contract. These delays in payment,
which add up to 37 months in the period between August 2018 and November 2019 alone,
were not linked in any way to the Covid-19 pandemic.
41.
The player also referred to the contents of the DRC decision in case 20-00748, which states
that FIFA did not declare the Covid-19 pandemic as a situation of force majeure in any given
country, while the reasons put forward by Beşiktas for the non-payment of his salary for
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March and April 2020 could not exempt Beşiktas from its obligations to pay the salaries in
question.
42.
In continuation, the Claimant / Counter-Respondent 1 insisted on the fact that the parties
had not reached any agreement as to the amendment to the contract. In fact, according to
the player, Beşiktas does not even allege that the parties attempted any negotiations in this
respect. The player highlighted that he had stayed in Turkey until 4 May 2020.
43.
The player further emphasised that according to employment law, the employer must bear
the risk of any possible restrictions on the performance of its contractual obligations,
especially, bearing in mind that those restrictions were temporary in nature.
44.
With respect to the application of art. 14bis of the Regulations on the Status and Transfer
of Players, the Claimant / Counter-Respondent 1 stressed that the period of 15 days was
duly complied with, if one considers the various payment reminders sent. In particular,
between the second reminder of 15 April 2020 and the termination on 4 May 2020,
Beşiktas was effectively given another 19 days to proceed to the payment of the relevant
remuneration, to no avail.
45.
With respect to the counterclaim, the player disputed the fact that the Respondent /
Counter-Claimant had paid the full loan fee to Liverpool.
46.
Furthermore, the player argued that it had actually offered his services to the Respondent /
Counter-Claimant until 4 May 2020 as he stayed continuously in Istanbul until that date.
Thus, any claim for compensation could only cover the 27 remaining days of May 2020. In
this regard, the Claimant held that Beşiktas did not suffer any damage since the league was
suspended during that time.
d.
Player’s reaction to Beşiktas’ counter-claim
47.
In accordance with the usual practice of the FIFA administration in similar matters, Beşiktas’
counterclaim was extended to Liverpool, which is the club with which the player registered
after his unilateral termination of the contract with the Respondent / Counter-Claimant.
48.
In this regard, Liverpool denied that is has standing to be sued in the present matter, since
the Beşiktas did not file its counter-claim against them. According to Liverpool, “It is clear
that Besiktas considers that its Counterclaim concerns its dispute with the Player and not
Liverpool”.
49.
Equally, Liverpool denied being the player’s “new club” in the sense of art. 17 par. 2 of the
Regulations on the Status and Transfer of Players, since, following the player’s unilateral
termination of the contract, the latter simply resumed his employment with Liverpool under
the terms of their employment contract, which had been suspended during the loan with
the Respondent. In this context, Liverpool emphasised that “Liverpool was obliged, both
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contractually under the Loan Agreement and in accordance with Article 10 of the
Regulations, to re-register the Player after the Loan ended. Failure to re-register the Player
would have resulted in Liverpool being in breach of multiple contracts and in potential
breach of the Regulations”.
50.
In conclusion as to FIFA’s jurisdiction, Liverpool claimed that it cannot be considered as the
“new club” as it is the “club of origin” and it is clearly a contradiction in terms for the “club
of origin” to simultaneously be regarded as the “new club”.
51.
With respect to the application of art. 17 par. 4 RSTP, Liverpool reiterated that the player’s
re-registration following the expiry of the loan period was automatic. In fact, at the time of
the conclusion of the loan agreement, it was clearly the intention of the parties that the
player resumes his employment with Liverpool once the loan expires. Liverpool equally
emphasised that the player was only re-registered with Liverpool on 10 July 2020, i.e. 40
days after the loan agreement expired. According to Liverpool, “Liverpool thus acted entirely
in accordance with its contractual duties and obligations under the Loan Agreement and
the Player Loan Contract (…) The presumption that Liverpool induced the Player to
terminate the Besiktas Contract cannot therefore be established given the factual
circumstances of the return of the Player to the club of origin at the end of the Loan”.
52.
With respect to the player’s breach of contract, Liverpool referred to the player’s various
default notices and underlined that the latter waited for 20 days from the 15 April 2020
notice to terminate the contract.
53.
Liverpool concludes, therefore, that the player lawfully terminated the contract with the
Respondent and dismissed the latter’s counterclaim. In particular, Liverpool emphasised that
Beşiktas cannot demonstrate having suffered any losses due to the player’s unilateral
termination of the contract. Indeed, the player only terminated the contract on 4 May 2020;
prior to that date, Beşiktas had access to the Claimant’s services. If at all, the Respondent /
Counter-Claimant did not benefit from the player’s services for only 27 days. Moreover, the
league only resumed on 12 June 2020, at a time where the loan of the player had already
expired.
54.
With respect to the claimed non-amortised part of the transfer fee, Liverpool made the
following statement: “The interpretation of clause 2.10 of the Loan Agreement is clear and
unambiguous and Besiktas was expressly obliged to pay the Loan Fee to Liverpool regardless
of whether the Besiktas Contract expired naturally or was terminated. Besiktas therefore
does not have any claim whatsoever to retain a sum of the Loan Fee in respect of the Player’s
valid termination of the Besiktas Contract”.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
55.
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 16 September 2020 and
submitted for decision on 3 June 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
56.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of
the Regulations on the Status and Transfer of Players (edition February 2021), 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, a
Turkish club and a US club.
57.
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 Player (edition February 2021), and
considering that the present claim was lodged on 16 September 2020, the August 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
58.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
59.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
60.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC emphasised that in the following considerations
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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
61.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties dispute whether the player terminated the
contract with just cause on 4 May 2020.
62.
In this context, the Chamber acknowledged that it must address the Respondent / CounterClaimant’s arguments as to why it deems that the player terminated the contract without
just cause.
63.
Beşiktas’ arguments in this respect can be summarised as follows:
The player did not serve proper notice of his termination of the contract. Such
termination should have been done by sending a letter to its postal address, whereas
the player sent an e-mail,
The player did not terminate the contract in accordance with art. 14bis of the
Regulations, since he only granted 10 days to Beşiktas to remedy the default,
At the time of the player’s unilateral termination, Beşiktas faced a situation of force
majeure linked to the Covid-19 pandemic. After the Turkish League resumed on 12
June 2020, Beşiktas sought agreements with its staff with respect to a variation to
their existing agreements, however the player had already terminated the contract
at the time,
The current claim of the player comes as he had already filed two other claims with
respect to outstanding remuneration; the player cannot make one claim the object
of different proceedings.
64.
Starting its analysis with the first argument indicated above, the DRC held that the player
has provided sufficient evidence that it served proper notice of his unilateral termination of
the contract. Indeed, the player submitted a copy of the termination letter which bears the
signature of Beşiktas’ Director of Football Operations and the mention “received”. In this
regard, the Chamber concurred that obliging the player to send a letter by postal mail,
when he had personally delivered the letter to an official of Beşiktas would be overformalistic. Consequently, the Respondent / Counter-Claimant with respect to the manner
in which the termination notice was served must be rejected.
65.
As to Beşiktas’ second argument, i.e. that the player did not terminate the contract in
accordance with the prerequisites of art. 14bis of the Regulations, the Chamber
acknowledged that, indeed, with its last default notice dated 15 April 2020, the player had
only granted 10 days to Beşiktas to remedy the default. The Chamber, therefore, recognised
that, strictly speaking, the player had not respected the prerequisites of art. 14bis of the
Regulations. According to the jurisprudence of the DRC, the default notice and deadline
contained therein are considered an important aspect of the process that a player must
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follow when terminating an employment contract due to overdue payables. In that sense,
the Chamber cannot confirm that the player has terminated the contract in accordance
with art. 14bis of the Regulations.
66.
Notwithstanding the above, the Chamber ruled that it has the discretion to determine
whether the player may have had just cause to terminate the contract in accordance with
art. 14 of the Regulations, by taking into account the overall circumstances of the specific
matter.
67.
In continuation, the Chamber addressed the Respondent / Counter-Claimant’s arguments
in connection with the Covid-19 pandemic.
68.
In this context, the Chamber first recalled that, in light of the worldwide Covid-19 outbreak,
FIFA issued a set of guidelines, the Covid-19 Football Regulatory Issues, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June
2020, FIFA issued an additional document, the FIFA Covid-19 FAQ, which provides
clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters.
69.
In continuation, the Chamber emphasised that the FIFA Covid-19 guidelines said guidelines
aim, in particular, at tackling the situation regarding agreements which cannot be
performed as the parties originally anticipated.
70.
This being said, and analysing the concept of a situation of force majeure, the Chamber
noted that FIFA did not declare that the Covid-19 outbreak was a force majeure situation
in any specific country or territory, or that any specific employment or transfer agreement
was impacted by the concept of force majeure. In other words, in any given dispute, it
is for a party invoking force majeure to establish the existence of said event under the
applicable law/rules as well as the consequences that derive in connection thereto.
The analysis of whether a situation of force majeure existed must be considered on a caseby-case basis, taking into account all the relevant circumstances.
71.
Turning its attention to the evidence on the file in respect of the Respondent’s allegation of
force majeure, the Chamber acknowledged that, in this particular matter, the Respondent
/ Counter-Claimant had not submitted any documentary evidence to support its position
that the situation it faced was to be considered a situation of force majeure.
72.
Furthermore, with respect to an agreement between Beşiktas and the player with respect
to a variation of the contract, the DRC equally noted that Beşiktas had not provided any
evidence that it had reached out to the player at any point in time in order to find an
agreement. The fact that, allegedly, the agreements sought with other members of staff
were only initiated after the Turkish League resumed on 12 June 2020 does not serve as a
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valid justification for the lack of communication with the player in respect of a potential
agreement. Indeed, Beşiktas knew that it had a longstanding dispute with the player with
respect to the payment of remuneration. In order to prove its good faith, one could have
expected of Beşiktas to reach out to the player sooner.
73.
In view of the above, the DRC unanimously concluded that Beşiktas could not validly invoke
the Covid-19 pandemic as a reason for the non-compliance of its financial obligations.
74.
In continuation, and as to Beşiktas’ argument with respect to the player’s several
proceedings against them, the Chamber emphasised that the fact that the player
terminated the contract while having lodged two different proceedings for outstanding
remuneration is irrelevant; the DRC has confirmed on two occasions that the Respondent /
Counter-Claimant was in breach of its financial obligations. In the DRC’s view, the two
previous decisions taken as to outstanding remuneration due to the player serve as an
aggravating circumstance in the assessment of the present matter, which concerns the
unilateral termination of the contract by the player due to overdue payables.
75.
Finally, and as confirmed by the DRC on two occasions, it is established that the Respondent
/ Counter-Claimant’s failure to honour its financial obligations towards the player started
well before the Covid-19 pandemic started.
76.
In view all the circumstances previously mentioned, the DRC unanimously decided that the
player terminated the contract on 4 May 2020 with just cause in accordance with art. 14
of the Regulations. Indeed, at the time of the termination, in light of Beşiktas’ substantial
and repeated breach of their financial obligations, the player’s confidence in the further
continuation of the employment relationship could legitimately have been lost.
77.
Consequently, the Respondent / Counter-Claimant is to held liable for breach of contract.
78.
Equally, the Chamber concurred that, in light of the aforementioned conclusion, Beşiktas’
counter-claim for compensation for breach of contract against the player is rejected.
79.
Prior to assessing the consequences of the early termination of the contract with just cause
by the player, the DRC addressed the latter’s claim for outstanding remuneration. In this
regard, the Chamber held that the outstanding remuneration corresponds to any and all
amounts which the Claimant / Counter-Respondent 1 has not received and were due up
until the date on which he terminated the contract on 4 May 2020.
80.
With respect to the attendance fees, the Chamber duly noted that the player had
withdrawn the respective part of his claim since he had received the relevant amount during
the course of the proceedings.
81.
With respect to his claim regarding 4 days in May 2020, the month of May 2020 was not
yet due at the time the player terminated the contract. The assessment of any amounts due
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in respect of the month of May 2020 shall, therefore, be made when calculating the
compensation for breach of contract.
82.
In this context, the Chamber outlined that, in accordance with said provision, 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.
83.
In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a compensation payable by the contractual parties in
the event of breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
84.
In this context, the Chamber outlined that, in accordance with said provision, 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 Claimant 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.
85.
In application of the relevant provision, the Chamber held that it first of all had to clarify
whether the pertinent employment contract contained any clause, by means of which the
parties had beforehand agreed upon a compensation payable by the contractual parties in
the event of breach of contract. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter
at stake.
86.
Therefore, the amount of compensation due to the player must be established in
accordance with the other parameters of art. 17 of the Regulations.
87.
Subsequently, the Chamber took into account the remuneration due to the player in
accordance with the employment contract as well as the time remaining on the same
contract, along with the player’s professional situation after the early termination occurred.
In this respect, the Chamber pointed out that at the time of the termination of the
employment contract on 4 May 2020, the contract would run until 31 May 2020, this is,
for another month. Consequently, taking into account the financial terms of the contract,
the Chamber concluded that the remaining value of the contract as from its early
termination by the player until the regular expiry of the contract amounts to EUR 210,000.
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Such amount shall serve as the basis for the final determination of the amount of
compensation for breach of contract.
88.
In continuation, the Chamber remarked that following the early termination of the
employment contract at the basis of the present dispute, the player was not able to mitigate
his damages as he resumed his employment contract with Liverpool only after the contract
with Beşiktas had expired.
89.
In view of the above, the Chamber decided to award the player EUR 210,000 as
compensation for breach of contract, which corresponds to the residual value of the
contract.
90.
In conclusion, Beşiktas must pay the player EUR 210,000 as compensation for breach of
contract. Furthermore, in accordance with the player’s respective claim as well as the
constant practice of the Chamber, 5% interest per annum shall apply on the
aforementioned amount as from 31 May 2020 until the date of effective payment.
ii. Compliance with monetary decisions
91.
Finally, the Chamber referred to par. 1 and 2 of art. 24bis 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.
92.
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 and for the maximum
duration of three entire and consecutive registration periods.
93.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent / Counter-Claimant does not pay the amounts due to the Claimant / CounterRespondent 1 within 45 days as from the moment in which the Claimant, communicates
the relevant bank details to the Respondent, provided that the decision is final and binding,
a ban from registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
94.
The DRC recalled that the above-mentioned bans will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3
of the Regulations.
95.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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d.
Costs
96.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
97.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no legal fees shall be awarded in these
proceedings.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant / Counter-Respondent 1, Loris KARIUS, is partially accepted.
2.
The Respondent / Counter-Claimant, Beşiktaş JK, has to pay to the Claimant / CounterRespondent 1 the following amount:
- EUR 210,000 as compensation for breach of contract plus 5% interest p.a. as from 31
May 2020 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent 1 are rejected.
4.
The counter-claim of the Respondent / Counter-Claimant is rejected.
5.
The Claimant / Counter-Respondent 1 is directed to immediately and directly inform the
Respondent of the relevant bank account to which the Respondent / Counter-Claimant must
pay the due amount.
6.
The Respondent / Counter-Claimant shall provide evidence of payment of the due amount
in accordance with this decision to [email protected], duly translated, if applicable, into one
of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above, is not paid by the
Respondent / Counter-Claimant within 45 days as from the notification by the Claimant /
Counter-Respondent 1 of the relevant bank details to the Respondent / Counter-Claimant,
the following consequences shall arise:
1. The Respondent / Counter-Claimant shall be banned from registering any new players,
either nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods. The
aforementioned ban mentioned will be lifted immediately and prior to its complete
serving, once the due amount is paid.
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(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the amount payable as per this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee.
8.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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
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