Labour Disputes
Texto da decisão
REF. FPSD-13277
Decision of the
Dispute Resolution Chamber
passed on 22 February 2024
regarding an employment-related dispute concerning
the player Brandley Mack-Olien Kuwas
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Tarek BRAUER (Germany), Member
Johan VAN GAALEN (South Africa), Member
CLAIMANT:
Brandley Mack-Olien Kuwas, the Netherlands
Represented by Bora Imadoglu
RESPONDENT:
Bitexen Giresunspor, Türkiye
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REF. FPSD-13277
I. Facts of the case
1.
The parties to the dispute are:
a. the Dutch player Brandley Mack-Olien Kuwas (hereinafter: the Player or the
Claimant), born on 19 September 1992; and
b. the club Bitexen Giresunspor (hereinafter: the Club or the Respondent), affiliated to
the Turkish Football Federation (TFF).
2.
On 15 September 2023, the Player and the Club concluded an employment contract valid
until 30 June 2024 (hereinafter: the Contract).
3.
According to clause 3 of the Contract, the Club undertook to pay the Player inter alia the
following amounts:
a. EUR 100,000 net as advanced payment on the signing date of the Contract;
b. EUR 460,000 net in 11 instalments, as follows:
•
•
•
•
•
•
•
•
•
•
•
4.
EUR 50,000 on 31 October 2023;
EUR 50,000 on 31 November 2023;
EUR 50,000 on 31 December 2023;
EUR 50,000 on 31 January 2024;
EUR 50,000 on 31 February 2024;
EUR 50,000 on 31 March 2024;
EUR 50,000 on 31 April 2024;
EUR 50,000 on 31 May 2024;
EUR 50,000 on 31 June 2023;
EUR 50,000 on 31 July 2024;
EUR 50,000 on 31 August 2024.
Furthermore, the same clause 3 of the Contract reads as follows:
“Other fees undertaken by the Club and Payment Terms
In the event that any of the aforementioned fees are more than 30 days late, a penalty
of 5.000 EUR shall be paid by the Club for each delay. This penalty payment may not
exceed 20.000 EUR in one season”.
5.
On 18 September 2023, the Club paid EUR 10,270 to the Player.
6.
On 7 November 2023, the Player put the Club in default for outstanding remuneration
amounting to EUR 144,730 (i.e., the instalments due September and October 2023, as well
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REF. FPSD-13277
as the applicable penalties). The Player granted the Club a 15 days’ deadline to cure the
breach under penalty of termination.
7.
On 11 December 2023, the Player notified the Club of the termination of the Contract due
to overdue payables.
8.
The Player informed that he remained unemployed following the termination of the
Contract.
9.
On 8 January 2024, the Player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
10. In his claim, the Player argued that the Club failed to comply with its financial duties, giving
cause to the termination of the Contract in line with art. 14bis of the FIFA Regulations on
the Status and Transfer of Players (RSTP). As a consequence, he requested to be awarded
the following amounts:
a. EUR 209,730 net as outstanding remuneration plus 5% interest p.a. as from the due
dates, broken down as follows:
•
•
•
•
•
EUR 89,730 as the balance of the advance payment;
EUR 5,000 as penalty;
EUR 50,000 as the instalment due on 31 October 2023;
EUR 5,000 as penalty; and
EUR 60,000 as the instalment due on 31 November 2023.
b. EUR 350,000 net as compensation for breach of contract, corresponding to the
residual value of the Contract (i.e., the instalments due from December 2023 until
August 2024), plus 5% interest p.a. as from 11 December 2023.
11. Furthermore, the Player requested that any costs linked to the FIFA proceedings be borne
by the Respondent.
12. The Respondent failed to reply to the claim, despite being invited to do so by the FIFA
general secretariat.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 January 2024 and submitted for decision on
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REF. FPSD-13277
22 February 2024. 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.
14. Furthermore, 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 RSTP (May 2023 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 Dutch player and a Turkish club.
15. 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 RSTP (May 2023 edition) and considering that the present claim was lodged on
8 January 2024, the cited edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
16. 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
17. The 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
18. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the case at hand pertains to a claim for outstanding
remuneration and compensation for breach of contract lodged by the Player against the
Club in connection to the employment relationship previously maintained between them.
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REF. FPSD-13277
19. In this context, the DRC took into account that the Club, for its part, failed to present any
response to the claim of the Player, in spite of having been invited to do so. In this way, the
DRC considered that the Club renounced its right to defence and thus accepted the
allegations of the Player. It equally confirmed that it shall make its decision on the basis of
the evidence and argumentation presented by the Player in line with art. 14 par. 1 of the
Procedural Rules.
20. With the above in mind, the Chamber acknowledged that at the time the Player put the
Club in default more than two of his monthly salaries were outstanding. Furthermore, the
Player granted the Club with a reasonable deadline (i.e., 15 days) to remedy its breach, to
no avail.
21. As per its solid jurisprudence, the DRC established that such persistent and substantial
non-compliance of the contractual obligations by the Club could justify the unilateral
termination of the Contract as well as it could hold the Club liable for breach of contract.
22. Consequently, the Chamber decided that the Player had just cause to terminate the
Contract in line with art. 14bis of the Regulations and the Club shall be liable to the
consequences that follow.
ii. Consequences
23. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Club.
24. To begin with, the Chamber determined that the Player should be entitled to the
outstanding remuneration at the time of termination based on general legal principle of
pacta sunt servanda, corresponding to the balance of the advanced payment and the
instalments payable in October and November 2023.
25. Taking into consideration the Player’s request as well as the constant practice of the
Chamber in this regard, the latter also decided to award the Player interest at the rate of
5% p.a. on the outstanding amounts as from the respective due dates until the date of
effective payment, as follows:
• EUR 89,730 net as the balance of the advance payment, plus 5% interest p.a. as
from 16 September 2023;
• EUR 50,000 net as the instalment due in October 2023, plus 5% interest p.a. as
from 1 November 2023; and
• EUR 60,000 net as the instalment due in November 2023, plus 5% interest p.a.
as from 1 December 2023.
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REF. FPSD-13277
26. In addition to the above, the DRC also decided that the Club should be liable to pay to the
Player EUR 10,000 net as contractual penalty, as expressly set out by the parties in clause
3 of the Contract. Nevertheless, the Chamber highlighted that no interest should be
applicable over the penalty in line with the principle of ne bis in idem.
27. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Player by the Club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
28. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract. 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.
29. As a consequence, the members of the Chamber determined that the amount of
compensation payable by the Club to the Player had to be assessed in application of the
other parameters set out in art. 17 par. 1 of the Regulations. The Chamber recalled that
said provision provides for a non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
30. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded
with the calculation of the monies payable to the Player under the terms of the Contract
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of EUR 350,000 net serves as the basis for the determination
of the amount of compensation for breach of contract.
31. In continuation, the Chamber verified as to whether the Player had signed an employment
contract with another Club during the relevant period of time, by means of which he would
have been enabled to reduce his loss of income. According to the constant practice of the
DRC as well as art. 17 par. 1 lit. ii) of the Regulations, such remuneration under a new
employment contract shall be taken into account in the calculation of the amount of
compensation for breach of contract in connection with the player’s general obligation to
mitigate his damages.
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REF. FPSD-13277
32. In casu, the Chamber observed that the Player remained unemployed following the
termination of the Contract. Therefore, the Chamber concluded that no mitigation applies
in the matter at hand.
33. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to
which a player is entitled to an amount corresponding to three monthly salaries as
additional compensation should the termination of the employment contract at stake be
due to overdue payables and should there be mitigation. Since the latter was not the case,
the DRC decided that the Player is not entitled to receive additional compensation.
34. On account of all of the above-mentioned considerations and the specificities of the case
at hand, the Chamber decided that the Club must pay the amount of EUR 350,000 net to
the Player, which was to be considered a reasonable and justified amount of compensation
for breach of contract in the present matter.
35. Lastly, taking into consideration the Player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award him interest on said compensation at
the rate of 5% p.a. as of the date of termination of the Contract (i.e., 11 December 2023)
until the date of effective payment.
iii. Sporting Sanctions
36. The Chamber noted that the Club had also on many occasions in the recent past been held
liable by the Football Tribunal for the early termination of employment contracts without
just cause. In fact, the DRC noted that the Club had already been imposed a registration
ban due to repetitive breaches of contract in October 2022 (cf. FPSD-6466), however, even
after having served such ban entirely, persisted with the unlawful behaviour.
37. In particular, the Chamber highlighted that only in 2023, the Club had already been held
liable for breaches of contracts in at least three opportunities, namely in cases FPSD-6265,
FPSD-10919, and FPSD-11395, which was deemed to be against the spirit of the Regulations
and especially the principle of contractual stability.
38. Having established the above, the Chamber recalled that under art. 17 par. 4 of the
Regulations, in addition to the obligation to pay compensation (if any), sporting sanctions
shall be imposed on any club found to be in breach of contract or found to be inducing a
breach of contract during the protected period.
39. As to the protected period, this is defined in the Regulations as “a period of three entire
seasons or three years, whichever comes first, following the entry into force of a contract, where
such contract is concluded prior to the 28th birthday of the professional, or two entire seasons
or two years, whichever comes first, following the entry into force of a contract, where such
contract is concluded after the 28th birthday of the professional”.
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REF. FPSD-13277
40. In the present case, the player was older than 28 years old when he signed the Contract.
For two years or two entire seasons had not elapsed by the time the Contract was
terminated, the Chamber confirmed that said termination took place within the protected
period.
41. At the same time, the DRC recalled that both (a) the Player terminated the employment
relationship with the Club with just cause in that the Club was found to have breached the
Contract; and (b) the Club is a repeat offender in this respect. As such, and by virtue of art.
17 par. 4 of the Regulations, the Chamber decided that the Club shall be banned from
registering any new players, either nationally or internationally, for the two next entire and
consecutive registration periods following the notification of the present decision.
42. For the sake of completeness, the Chamber recalled that in accordance with art. 24 par. 3
lit. a) of the Regulations, the consequences for failure to pay relevant amounts in due time
may be excluded where the Football Tribunal has imposed a sporting sanction on the basis
of art. 17 in the same case. Consequently, the Chamber confirmed that the consequences
for failure to pay relevant amounts in due time envisaged by art. 24 of the Regulations were
excluded in the present matter, and that should the Club fail to timely comply with this
decision, it would be for the FIFA Disciplinary Committee to adopt the necessary measures
in accordance with the FIFA Disciplinary Code.
d. Costs
43. 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.
44. 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.
45. 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-13277
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Brandley Mack-Olien Kuwas, is partially accepted.
2.
The Respondent, Bitexen Giresunspor, must pay to the Claimant the following amount(s):
- EUR 89,730 net as outstanding remuneration plus 5% interest p.a. as from 16
September 2023 until the date of effective payment;
- EUR 50,000 net as outstanding remuneration plus 5% interest p.a. as from 1 November
2023 until the date of effective payment;
- EUR 60,000 net as outstanding remuneration plus 5% interest p.a. as from 1 December
2023 until the date of effective payment;
- EUR 10,000 net as contractual penalty; and
- EUR 350,000 net as compensation for breach of contract without just cause plus 5%
interest p.a. as from 11 December 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.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods following the
notification of the present decision.
6.
If full payment is not made within 30 days of notification of this decision, the present
matter shall be submitted, upon request of the Claimant, to the FIFA Disciplinary
Committee.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13277
NOTE RELATED TO THE APPEAL PROCEDURE:
According to art. 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. art. 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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