Labour Disputes
Texto da decisão
REF FPSD-4377
Decision of the
Dispute Resolution Chamber
passed on 31 March 2022
regarding an employment-related dispute concerning the player Kevin
Luckassen
BY:
Phillipe Diallo (France)
CLAIMANT:
Kevin Luckassen, Netherlands
Represented by Ron Moerkerk
RESPONDENT:
Kayserispor Kulubu, Turkey
Represented by Batu Mosturoglu
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I.
Facts of the case
1.
On 1 February 2021, the Dutch player, Kevin Luckassen (hereinafter: the Claimant), and the
Turkish club, Kayserispor Kulubu (hereinafter: the Respondent) signed an employment
contract valid as from 1 February 2021 for the football season 2020/2021, 2021/2022 and
2022/2023.
2.
On 15 August 2021, the Claimant and the Respondent (hereinafter: the parties) concluded
an addendum to the contract (hereinafter: “the addendum”) in terms of which the duration
of the contract was determined to be between the period 15 August 2021 until 31 May 2023.
3.
Pursuant to art. 6 of the addendum, the Respondent undertook to pay to the Claimant the
amount of EUR 50,000 on 6 September 2021.
4.
In accordance with art.3.1 of annex 1 to the addendum, the Respondent further agreed to
pay to the Claimant an amount of EUR 100,000 as follows:
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5.
EUR 25,000 net on 24 September 2021
EUR 25,000 net on 15 October 2021
EUR 25,000 net on 15 November 2021
EUR 25,000 net on 15 December 2021
On 6 October 2021, the Claimant sent a default notice to the Respondent to pay the
outstanding amount of EUR 75,000 net corresponding to the overdue amount of EUR 50,000
due on 6 September 2021 and EUR 25,000 due on 24 September 2021, granting it a deadline
of 15 days to comply, however to no avail.
II. Proceedings before FIFA
6.
On 24 November 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
7.
According to the Claimant, overdue payments in the total amount of EUR 75,000 for a period
of almost 5 months is a serious neglect of the contractual obligations of the Respondent.
8.
Moreover, the Claimant indicated that “there was absolutely no justification for the club to
default on these payments towards the player.”
9.
The requests for relief of the Claimant, were that the that the Respondent pay the overdue
amount of EUR 75,000 corresponding to the amount of EUR 50,000 due on 6 September
2021 and EUR 25,000 due on 24 September 2021.
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b. Position of the Respondent
10. In its reply to the claim, the Respondent firstly disputed FIFA’s competence without providing
further reasons.
11. It further indicated that the Claimant is currently temporarily registered from 5 September
2021 under Sepsi OSK of Romania for the ongoing 2021-2022 football season.
12. The Respondent mentioned that the “Turkish Lira has faced a sudden and devastating blow
against all foreign currencies in the 4th fiscal quarter of the year.”
13. In this context, the Respondent mentioned that “considering the deviation of the Turkish
economy and the harsh conditions brought by the financial turmoil, it is fair to say that
Kayserispor Kulübü could not be inducted with any fault or recklessness.”
14. Accordingly, the Respondent cannot be held liable as the club has been facing unforeseeable
severe conditions not created by the club, however the Respondent is looking forward to
covering the Claimant’s unpaid remuneration.
15. In conclusion, the Respondent requested that claim of the Claimant be dismissed.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether he was competent to deal with the case at hand. In this
respect, he took note that the present matter was presented to FIFA on 24 November 2021
and submitted for decision on 31 March 2022. Taking into account the wording of art. 34 of
the October 2021 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.
17. Subsequently, the Single Judge 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 (March 2022 edition), he is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international
dimension between a Dutch player and a Turkish club.
18. The Single Judge further noted that the Respondent contested the competence of FIFA’s
deciding bodies. In this respect, the Single Judge noted that the Respondent failed to
substantiate the basis of such dispute.
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19. The Single Judge therefore established that the Respondent’s objection towards the
competence of FIFA to deal with the present matter must be rejected, and that FIFA is
competent, to consider the present matter as to the substance.
20. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (March 2022 edition), and
considering that the present claim was lodged on 24 November 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
21. The Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
22. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
23. The foregoing having been established; the Single Judge moved to the substance of the
matter, and took note of the fact that the Claimant indicted that he is entitled to payment by
the Respondent of certain financial obligations as detailed in the addendum to the contract.
24. In this context, the Single Judge acknowledged that his 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.
25. The Single Judge noted that the Respondent did not contest that the claimed outstanding
amounts are due to the Claimant, it only argued that it was financially impacted due to the
currency crash of the Turkish Lira and therefore not in a position to comply with its contractual
financial obligations.
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26.
In this respect, the Single Judge highlighted that the Respondent had not invoked such
circumstances to the Claimant, as it had failed to reply to the default notice sent by the
latter.
27.
In this context, the Single Judge mentioned that the arguments raised by the Respondent
cannot be considered a valid reason for non-payment of the monies claimed by the
Claimant, in other words, the reasons brought forward in its defence do not exempt the
Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
28.
In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
Single Judge decided that the Respondent is to be held liable to pay the Claimant the
outstanding amount as detailed in his claim.
ii. Consequences
29.
Having stated the above, as a consequence, and in accordance with the general legal
principle of pacta sunt servanda, the Single Judge held that the Respondent is liable to pay
to the Claimant, the total amount of EUR 75,000 net, corresponding to the overdue amount
of EUR 50,000 due on 6 September 2021 and EUR 25,000 due on 24 September 2021.
30.
Lastly the Single Judge, took into account that the Claimant limited his claim to the total
amount of EUR 75,000 net, therefore based on the legal principle of ne eat iudex ultra petita
partium, interest on the aforesaid amount was not granted on the basis that it was not
requested by the Claimant.
iii. Compliance with monetary decisions
31. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with his 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.
32. In this regard, the Single Judge 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.
33. Therefore, bearing in mind the above, the Single Judge 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
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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.
34. 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.
35. The Single Judge 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
36. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
37. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
38. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kevin Luckassen, is accepted.
2.
The Respondent, Kayserispor Kulubu, has to pay to the Claimant, the amount of EUR 75,000
net as outstanding remuneration corresponding to:
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▪
EUR 50,000 net due and payable on 6 September 2021; and
EUR 25,000 net due and payable on 24 September 2021.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
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 the ban shall
be of 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.
5. The consequences shall only be enforced at the request of the Claimant in accordance
with article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6. 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).
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