Labour Disputes
Texto da decisão
REF FPSD-6981
Decision of the
Dispute Resolution Chamber
passed on 24 November 2022
regarding an employment-related dispute concerning the player Foxi
Kethevoama
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
LUKASEK Peter (Slovakia), member
PERLEMUTER Jerome (France), member
CLAIMANT:
Foxi Kethevoama, Central African Republic
Represented by Bora Imadoglu
RESPONDENT:
Balikesirspor, Türkiye
Represented by Korhan Armağan
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I. Facts of the case
1.
On an unspecified date, the player Foxi Kethevoama (hereinafter: the player or the
Claimant) and Balikesirspor (hereinafter: the club or the Respondent) executed an
employment agreement(hereinafter: the previous contract). It is not disputed that the
relationship between the parties started in the season 2016/2017.
2.
On 11 September 2020, the parties concluded a new employment contract (hereinafter:
the first contract) valid as from the same date until 31 May 2021.
3.
According to the first contract, the Respondent undertook to pay the Claimant the
following:
a. EUR 20,000 as advance payment due by 11 September 2020;
b. EUR 150,000 in 10 equal instalments of EUR 15,000 each due by the end of
each month, starting in October 2020 and ending in July 2021.
4.
Clause 9 of the first contract reads as follows (sic):
“The parties are free to accept the authority of the Dispute Resolution Board within the
framework of the Dispute Resolution Board Instruction in the resolution of any dispute arising
from this contract.”
5.
On 15 September 2020, the parties entered into a settlement agreement, according to
which inter alia the club owed EUR 122,758 to the player, which would be paid on 15 June
2021 (hereinafter: the settlement agreement).
6.
On 8 September 2021, the parties concluded another employment contract (hereinafter:
the second contract) valid as from the same date until 31 may 2022.
7.
According to the second contract, the Respondent undertook to pay the Claimant:
a. TRY 700,000 in 10 equal instalments of TRY 70,000 each due by the end of
each month, starting in September 2021 and ending in June 2022;
b. TRY 150,000 in case the player played 5 matches in the relevant season.
8.
Clause 9 of the second contract reads as follows:
“The parties are free to accept the authority of the Dispute Resolution Board within the
framework of the Dispute Resolution Board Instruction in the resolution of any dispute arising
from this contract.”
9.
The amounts agreed under both contracts are net.
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10. On 30 June 2022, the legal representative of the player’s partner, Mrs. Petra Orovecz
(hereinafter: Mrs. Orovecz), wrote to the club and stated that Mrs. Orovecz filed a claim
before the relevant courts in Budapest regarding child support, and informing the club
that proceedings for the international enforcement of the decisions rendered by said
courts had been initiated. Accordingly, the club was requested to pay HUF 14,280,000, or
to deduct said amount form the player’s remuneration, and be transferred to a bank
account held in the name of the player’s child.
11. On 8 August 2022, the Claimant lodged a claim against the Respondent in front of FIFA
and requested payment of the entire remuneration due under the first and the second
contracts, respectively EUR 170,000 net and TRY 850,000 net, together with interest of 5%
p.a. as from the due dates.
12. The player provided evidence regarding the match participations during the season
2021/2022, which demonstrates that the player played more than 5 matches.
13. In its reply, the Respondent challenged the competence of FIFA and argued that the
National Dispute Resolution Chamber (NDRC) of Türkiye is competent to hear the dispute
on the basis of clause 9 of both contracts. However, the Respondent did not file any
evidence as to regulations/composition of the cited body.
14. As to the substance, the club argued that the parties executed the settlement agreement,
and the club argued that the maximum amount that could be claimed by the player was
EUR 122,758. The club equally argued to have made payments amounting to TRY 65,000
and EUR 23,000 to the player before the claim was filed. In support of its position, it filed
several payment receipts however without any specification.
15. Moreover, the club argued that the player had a debt towards his partner, Mrs. Orovecz,
who allegedly opened and succeeded in proceedings against him filed before a court in
Budapest. The club argued that the player had a debt of UF 14,280,000 towards Mrs.
Orovecz and that some of his payables were ordered to be paid to said person by the
Family Court in Türkiye. In respect of the foregoing, the Respondent filed solely a letter
from Mrs. Orovecz’s lawyer, and no specimen of any court order.
16. The club concluded as follows:
“As we explained above, at first FIFA Judicial Bodies are not entitled to solve the dispute arising
from the contracts signed by Applicant and Club. Also, the Club does not have any debt to the
Applicant according to the employment and settlement contracts. Therefore we kindly request
you to reject the case lodged by the Applicant and charge the Applicant for the procedural
costs.
17. In his rejoinder, the Claimant argued that the settlement agreement has no connection
to the first contract or the second contract, but only to the previous contract and in
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particular for the 2019/2020 season and not 2020/2021 season. As such, the player
rejected the club’s assertions that his claim was limited to the amounts under the settled
agreement.
18. As to the notice served by Mrs. Orovecz’s lawyer, the player stated that this is “not binding”
and that the Respondent did not present any evidence of having paid any amounts to
said persons.
19. Nonetheless, the player recognized some payments made by the club, and amended his
claim as follows:
“• Net EUR 12.000.- along with its interest of 5% p.a. starting from 30 October 2020 until the
date of effective payment,
• Net EUR 15.000.- along with its interest of 5% p.a. starting from 30 November 2020 until the
date of effective payment,
• Net EUR 15.000.- along with its interest of 5% p.a. starting from 30 December 2020 until the
date of effective payment,
• Net EUR 15.000.- along with its interest of 5% p.a. starting from 30 January 2021 until the
date of effective payment,
• Net EUR 15.000.- along with its interest of 5% p.a. starting from 28 February 2021 until the
date of effective payment,
• Net EUR 15.000.- along with its interest of 5% p.a. starting from 30 March 2021 until the
date of effective payment,
• Net EUR 15.000.- along with its interest of 5% p.a. starting from 30 April 2021 until the date
of effective payment,
• Net EUR 15.000.- along with its interest of 5% p.a. starting from 30 May 2021 until the date
of effective payment,
• Net EUR 15.000.- along with its interest of 5% p.a. starting from 30 June 2021 until the date
of effective payment,
• Net EUR 15.000.- along with its interest of 5% p.a. starting from 30 July 2021 until the date
of effective payment,
• Net 5.000.TL, along with its interest of 5% p.a. starting from 30 September 2021 until the
date of effective payment,
• Net 70.000.TL, along with its interest of 5% p.a. starting from 30 October 2021 until the date
of effective payment,
• Net 70.000.TL, along with its interest of 5% p.a. starting from 30 November 2021 until the
date of effective payment,
• Net 70.000.TL, along with its interest of 5% p.a. starting from 30 December 2021 until the
date of effective payment,
• Net 70.000.TL, along with its interest of 5% p.a. starting from 30 January 2022 until the date
of effective payment,
• Net 70.000.TL, along with its interest of 5% p.a. starting from 28 February 2022 until the
date of effective payment,
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• Net 70.000.TL, along with its interest of 5% p.a. starting from 30 March until the date of
effective payment,
• Net 70.000.TL, along with its interest of 5% p.a. starting from 30 April 2022 until the date of
effective payment,
• Net 70.000.TL, along with its interest of 5% p.a. starting from 30 May 2022 until the date of
effective payment,
• Net 70.000.TL, along with its interest of 5% p.a. starting from 30 June 2022 until the date of
effective payment,
• Net 150.000.TL, along with its interest of 5% p.a. starting from 31 May 2022 until the date
of effective payment”.
20. The Respondent did not file its final comments in spite of the fact that it was invited to do
so by the FIFA general secretariat.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 8 August 2022 and submitted
for decision on 24 November 2022. 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.
2.
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 Regulations on the Status and Transfer of Players (October 2022 edition),
the Dispute Resolution Chamber is in principle competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a player form the Central African Republic and a club from Türkiye.
3.
The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the NDRC of Türkiye, alleging that the latter is competent to
deal with any dispute deriving from the relevant employment contracts, in accordance
with their clause 9.
4.
Taking into account all the above, the Chamber emphasised that in accordance with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
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dispute to be decided by an independent arbitration tribunal that has been established
at national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Chamber referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
5.
In this context, Chamber pointed out that it should first analyse whether the employment
contract at the basis of the present dispute contained a clear and exclusive jurisdiction
clause in favour of the NDRC of Türkiye. In this respect, the DRC referred to clause 9 of
both employment contracts. The Chamber, after analysing the wording of the jurisdiction
clause, concluded that such clause did not clearly and exclusively establish the
competence of the NDRC of Türkiye, in accordance with art. 22 par. 1 lit. b) of the
aforementioned regulations.
6.
Additionally, the Chamber noted that the Respondent failed to provide any documentary
evidence which could prove that the NDRC of Türkiye meets the requirements established
in art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, detailed in
the FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations. On account
of the above, and referring to the principle of burden of proof contained in art. 13 par. 5
of the Procedural Rules, the Chamber established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter must be rejected, and
FIFA is competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider the
present matter as to the substance.
7.
Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 8 August 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
8.
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).
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c. Merits of the dispute
9.
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
10. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club for
outstanding remuneration.
11. According to the player, the club failed to remit his salaries from October 2020 to July
2021 (first contract) and from September 2021 to May 2022 (second contract). The
Respondent, for its part, argued that (a) the parties had found a settlement agreement,
and (b) that it had been prompted to make payments to the player’s partner.
12. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
21. The Chamber first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties.
22. Nonetheless, the Chamber noted that the evidence and argumentation provided by the
Respondent cannot justify the lack of payment of the amounts claimed as outstanding by
the Claimant. As to the first argument raised by the club, the DRC found it is clear that the
settlement agreement makes no reference to the first contract, and it could never relate
to the second contract as this was signed after 15 September 2021. At the same time and
with regards to the second argument put forward by the Respondent, the DRC noted that
club has not filed any evidence in support of its allegations other than the letter from the
lawyer. Therefore, the Chamber rejected the position of the club.
13. In view of the foregoing and bearing in mind the basic legal principle pacta sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, as detailed in continuation. In addition,
taking into consideration the Claimant’s request as well as the constant practice of the
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Chamber in this regard, the latter decided to award the Claimant interest at the rate of
5% p.a. on the outstanding amounts as from their due dates until the date of effective
payment:
a) EUR 12,000 as outstanding remuneration plus 5% interest per annum as from 1
November 2020 until the date of effective payment;
b) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
December 2020 until the date of effective payment;
c) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
January 2021 until the date of effective payment;
d) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
February 2021 until the date of effective payment;
e) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
March 2021 until the date of effective payment;
f) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
April 2021 until the date of effective payment;
g) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
May 2021 until the date of effective payment;
h) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
June 2021 until the date of effective payment;
i)
EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1 July
2021 until the date of effective payment;
j)
EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
August 2021 until the date of effective payment;
k) TRY 5,000 net as outstanding remuneration plus 5% interest per annum as from 1
October 2021 until the date of effective payment;
l)
TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
November 2021 until the date of effective payment;
m) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
December 2021 until the date of effective payment;
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n) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
January 2022 until the date of effective payment;
o) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
February 2022 until the date of effective payment;
p) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
March 2022 until the date of effective payment;
q) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
April 2022 until the date of effective payment;
r) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
May 2022 until the date of effective payment;
s) TRY 220,000 net as outstanding remuneration plus 5% interest per annum as from
1 June 2022 until the date of effective payment.
ii. Compliance with monetary decisions
14. 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.
15. 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.
16. 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.
17. 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.
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18. 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
19. 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.
20. 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.
21. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Foxi Kethevoama, is partially accepted.
2.
The Respondent, Balikesirspor, has to pay to the Claimant the following amount(s):
a) EUR 12,000 as outstanding remuneration plus 5% interest per annum as from 1
November 2020 until the date of effective payment;
b) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
December 2020 until the date of effective payment;
c) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1 January
2021 until the date of effective payment;
d) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1
February 2021 until the date of effective payment;
e) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1 March
2021 until the date of effective payment;
f) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1 April
2021 until the date of effective payment;
g) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1 May
2021 until the date of effective payment;
h) EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1 June
2021 until the date of effective payment;
i)
EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1 July
2021 until the date of effective payment;
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j)
EUR 15,000 as outstanding remuneration plus 5% interest per annum as from 1 August
2021 until the date of effective payment;
k) TRY 5,000 net as outstanding remuneration plus 5% interest per annum as from 1
October 2021 until the date of effective payment;
l)
TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
November 2021 until the date of effective payment;
m) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
December 2021 until the date of effective payment;
n) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
January 2022 until the date of effective payment;
o) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
February 2022 until the date of effective payment;
p) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
March 2022 until the date of effective payment;
q) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
April 2022 until the date of effective payment;
r) TRY 70,000 net as outstanding remuneration plus 5% interest per annum as from 1
May 2022 until the date of effective payment;
s) TRY 220,000 net as outstanding remuneration plus 5% interest per annum as from 1
June 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
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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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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).
CONTACT INFORMATION
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