Labour Disputes
Texto da decisão
REF. FPSD-15336
Decision of the
Dispute Resolution Chamber
passed on 8 October 2024
regarding an employment-related dispute concerning the Player Şaxrudin
Magomedoviç Magomedaliyev
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Oleg ZADUBROVSKIY (Russia), Member
Peter LUKASEK (Slovakia), Member
CLAIMANT:
Şaxrudin Magomedoviç Magomedaliyev, Azerbaijan
Represented by Ercan Sevdimbaş
RESPONDENT:
Adana Demirspor A.S., Türkiye
Represented by VARAT | KURULOĞLULAW OFFICE
pg. 2
REF. FPSD-15336
I. Facts of the case
1.
On 8 September 2023, the player Şaxrudin Magomedoviç Magomedaliyev from Azerbaijan
(hereinafter: Claimant or Player) and the club Adana Demirspor A.S. from Türkiye
(hereinafter: Club or Respondent) concluded an employment contract (hereinafter: the
Contract) valid until 3 June 2025.
2.
According to the Contract, the Respondent undertook to pay the Claimant the following:
Season 2023/2024:
-
USD 400,000 payable in 10 instalments of USD 40,000 between October 2023
and July 2024.
-
USD 50,000 as “guaranteed bonus”: “All extra bonuses that the player will receive
from the team's win and draw, will be deducted from the USD 50.000 (fifty thousand
USD) guarantee bonus. The remaining amount from the balance guarantee bonus
will be paid to the player on August 30, 2024”.
Season 2024/2025:
-
USD 400,000 payable in 10 instalments of USD 40,000 between October 2024
and July 2025.
-
USD 50,000 as “guaranteed bonus”: “All extra bonuses that the player will receive
from the team's win and draw, will be deducted from the USD 50.000 (fiftythousand
USD}) guarantee bonus. The remaining amount from the balance guarantee bonus
will be paid to the player on August 30, 2025”
“The Club shall pay to the Player totally USD 10.000 (ten thousand USD) for each
season to the Player for accommodation, car, flight ticket and other expenses. This
payment shall be divided into 10 (ten) equal instalments. Club shall pay USD 1.000
(thousand USD) each month (from September until June) on the 30 of every month.
This payment shall be made only if Club and Player has a valid Contract on the
payment date.”
3.
On 16 May 2024, the Claimant put the Respondent in default and requested payment of
USD 124,000 corresponding to the unpaid salaries between January and March 2024 (USD
120,000) and the expense allowance between January and March 2024 (USD 4,000), setting
a time limit of 15 days.
4.
On 30 May 2024, the Claimant and the Respondent concluded a “protocol” (hereinafter: the
Protocol).
pg. 3
REF. FPSD-15336
5.
The protocol reads inter alia as follows:
“Whereas:
A.
On 8 September 2023 the Club and the Player concluded an employment
contract "Professional Football Player's Contract" (the Contract), valid for the
period of 2 (two) sporting seasons starting on the aforementioned date and
ending on 30 June 2025.
B.
The Player sent a default notice on 16 May 2024 and requested from Club to
pay 124.000 USD.
C.
In view of the above, the Parties wish to express the mutual desire to settle this
issue and modify, change and reform the Employment contract and to add extension
option for additional one season.”
Scope of the Protocol
Parties express the mutual desire to settle the issue regarding from the notice sent by
the Player on 16 May 2024 and modify, change and reform the employment contract
The Player hereby accepts, declares and undertakes that in case the Club will fulfil its
obligations in time he waives all kinds of termination rights based on the notice dated
16 May 2024 with this Protocol. Additionally, Parties accepts, declares and undertakes
to modify, change and reform the employment contract.
Parties accept and declare to modify, change and reform "only the amount of the
payments and the payment dates” undertaken by the Club regarding to the
Professional Football Player's Transfer Contract signed on 08.09.2023. AII provisions
regarding to the amount of payments written on Professional Football Player's
Transfer Contract dated 08.09.2023 shall become invalid and null with the signing of
this Protocol. Only below mentioned amounts in Article 4 of this Protocol shall be paid
to the Player. AII provisions other than those relating to amount of the payments and
payment dates shall remain valid and in force with signing of this Protocol.
Financial Terms Regarding to the Season of 2023-2024
As it is mentioned above, The Player sent a default notice on 16 May 2024 and
requested from Club to pay 124.000 USD as the salary of 3 months equivalent to
120.000 USD (January 2024, February 2024, March 2024) and as expense allowance
of 4 months (January 2024, February 2024, March 2024, April 2024) plus their interests
in the rate of %5 p.a. to be applied from each due time until the date of effective
payment and granted the time limit until 31 May 2024 for Club to fulfil its obligations.
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REF. FPSD-15336
Club accepts, declares and undertakes to pay 124.000 USD regarding to the default
notice that sent by the Player on 16 May 2024 as following:
•
100.000 USD on 7 June 2024
•
24.000 USD on 30 July 2024
In the event that any of the instalments referred above is not paid by the Club within
10 days from the stipulated deadlines, the Player the Parties accept and undertake
that the Player is entitled to terminate the employment contract between the parties
immediately without any warning notice.
By signing this Protocol, The Player hereby accepts, declares and undertakes that in
case the Club fulfil its obligations in time, he will waive all kinds of termination rights
based on the notice dated 16 May 2024. The Player's receivables for the remaining
2023-2024 season which is not subject to the notice sent on 16 May 2024 including
but not limited to salary, accommodation etc in total 213.000 USD will be paid on 30
July 2024. (The guarantee bonus of 50.000 USD is included in this amount.) In the event
that any of the instalments referred above is not paid by the Club within 10 days from
the stipulated deadline, the Parties accept and undertake that the Player is entitled to
terminate the employment contract between the parties immediately without any
warning notice.
Both parties herein accepts that all due and undue payments which should be paid
by the Club has been settled on this Article and Player accepts that he has not other
request or due or undue receivables from 2023/2024 football season.”
4- Amended and Changed Provisions
Club hereby accepts to pay additional payments for 2024-2025 as follows;
• Monthly Salary
Club shall pay additional 100.000 USD for the Player's yearly salary. So total yearly
salary of the Player shall be 500.000 USD totally, that will be divided into 10 equal
salaries of 50,000 USD each month (September 2024 - June 2025). This amount will be
Player's total monthly salary payment.
The salary payments will be paid at the end of the relevant month.
• Guarantee Bonus
pg. 5
REF. FPSD-15336
Season 2024/2025 Guarantee Bonus: 50,000 USD. AII extra bonuses that the player
will receive from the team's win and draw, will be deducted from the 50.000 USD
guarantee bonus. The remaining amount from the balance guarantee bonus will be
paid to the player on July 30, 2025.
Contract extension option
lf the player starts in the first 11 of at least 25 (twenty five official league matches in
2024-2025 football season. the player's contract will automatically be extended for
2025-2026 football season. lf the contract js extended until 30.06.2026. payments for
the 2024/2025 and 2025/2026 seasons will be as follows:
Season 2024-2025
• Monthly Salary
The yearly salary of the Player shall be 550.000 USD totally, that will be divided into
10 equal salaries of 55,000 USD each month (September 2024 - June 2025).
• Guarantee Bonus
Season 2024/2025 Guarantee Bonus: 50,000 USD. AII extra bonuses that the player
will receive from the team's win and draw, will be deducted from the 50.000 USD
guarantee bonus. The remaining amount from the balance guarantee bonus will be
paid to the player on July 30, 2025.
The salary payments will be paid at the end of the relevant month.
[…]”
6.
On 21 June 2024, the Claimant sent a termination notice, mentioning that the first
instalment of the Protocol remained unpaid.
7.
On 15 July 2024, the Player signed an employment contract with the club Qarabag Fk from
Azerbaijan valid until 30 June 2025, including a total net salary of USD 300,000.
pg. 6
REF. FPSD-15336
II. Proceedings before FIFA
8.
On 24 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is set out below.
a. Position of the Claimant
9.
In his claim, the Claimant argued that he had terminated the contract for just cause
because the Respondent had failed to meet its financial obligations following the notice of
default. In addition, the Claimant referred to the Protocol in which it was agreed that if the
Club failed to pay any instalment within 10 days, the contract would be terminated for just
cause without notice.
10. As to the outstanding remuneration, the Claimant mentioned the following “the total
amount of receivables for the 2023-2024 football season, which does not include the warning
sent on 16.05.2024, is determined as 213.000-USD in the protocol. In addition to these, there is
a receivable of 124.000-USD stated in the notice sent on 16.05.2024. Therefore, the Claimant
Player's total receivable due for the 2023/2024 football season is 337.000-USD.”
11. As to the compensation, the Claimant mentioned that the residual value amounted to USD
550,000, and that, considering that he concluded a new contract, the compensation should
amount to USD 250,000. Moreover, the Claimant added that he is entitled to additional
compensation in the amount of USD 250,000.
12. The Claimant requested the following relief:
“10.1. The Claimant first requests that you order the Respondent to pay the
overdue and unpaid amount of 337,000-USD together with interest at 5% per
annum from the date of the rightful termination of the contract by the Player
(21.06.2024) until the date of actual payment.
10.2. The Claimant secondly would like to request you to make a decision that the
unilateral termination made by the Claimant is with just cause and in line with the
jurisprudence of FIFA and the CAS.
10.3. The Claimant thirdly would like to request a termination compensation of
250.000-USD with Its 5% p.a. interest starting from the termination date of
21.06.2024 until the date of effective, corresponding the remaining part of the
contractual relation.
pg. 7
REF. FPSD-15336
10.4.The Claimant asks FIFA to condemn the Respondent to pay an additional
compensation of 250.000 USD in accordance with its 5% p.a. interest starting from
the termination date of 21.06.2024 until the date of effective payment.
10.5 In consideration of the fact that the Respondent caused the Claimant to file
the case herein, we would like to request your honorable chamber to make a
decision that the judicial costs and the attorneyship fees that the Claimant is faced
with shall be paid by the Respondent”.
b. Position of the Respondent
13. In its reply, the Respondent requested FIFA to reject the claim.
14. The Respondent argued that it acted in good faith and agreed to pay the Player more, as
well as to pay his monthly salary in a shorter period. The Respondent mentioned that the
Protocol included an additional payment of USD 100,0000 which was almost equivalent to
two and a half months. The Respondent further mentioned that:
“the Claimant has taken advantage of the Club's economic hardship by threatening
with termination and acted in bad faith to try to get advantage from the Respondent.
As can be seen from the document submitted to the file by the Claimant, the Claimant
entered a new employment contract with the Qarabağ FK on 15 July 2024. According
to the new employment contract Claimant will receive the totally 300.000,00 USD for
the 2024/2025 football season (each month 30.000,00 USD August 2024 – June 2025)
This situation alone is evidence that on May 31, 2024, the Claimant took advantage of
the Club's financial difficulties and forced an additional payment of 100.000,00 USD.
It is clear that this Protocol has been signed under duress.”
15. As to the additional compensation, the Respondent mentioned that “is excessive and given
that the Player has not encountered any situation that would negatively impact his career, the
additional compensation should be limited to 3 months, amounting to 150.000,00 USD”.
16. The Respondent requested the following relief:
“1 - To REJECT all the claims of Claimant.
2 - To determine that the Claimant terminated the Contract without just cause.
3 - If the Tribunal shall not reject the case, we request that the FIFA Football Tribunal
decide to reject additional compensation and accept that Claimant failed to mitigate
the damages properly.
pg. 8
REF. FPSD-15336
4 - If the Panel accepts the additional compensation, compensation shall be reduced
to 3 months.
5 - To order to pay Claimant to pay legal expenses, judicial cost and attorney fee to
the Respondent.”
pg. 9
REF. FPSD-15336
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Dispute Resolution Chamber (hereinafter: the 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 24 July 2024 and submitted for decision on 8
October 2024. Taking into account the wording of art. 34 of the March 2023 edition of the
Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
19. Furthermore, 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 (June 2024 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 player from
Azerbaijan and a club from Türkiye.
20. 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 (June 2024 edition), and
considering that the present claim was lodged on 24 July 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
21. 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 TMS.
c. Merits of the dispute
22. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
pg. 10
REF. FPSD-15336
i. Main legal discussion and considerations
23. The Chamber then moved to the substance of the matter and took note of the fact that the
Claimant is requesting outstanding remuneration and compensation for breach of
contract.
24. In particular, the Chamber observed that the Claimant stated that he terminated the
Contract with just cause due to outstanding remuneration and requested outstanding
remuneration and compensation. The Respondent, on the other hand, requested that the
claim be rejected and mentioned that the Protocol was signed under duress.
25. In this context, the Chamber acknowledged that its task was to determine whether the
Protocol was valid and binding and whether the employment relationship was terminated
with just cause.
Was the Protocol valid and binding?
26. The Chamber recalled that the Respondent mentioned that the Protocol was concluded
under duress. However, the Chamber observed that (i) no evidence was provided to this
effect and (ii) at the moment of the Protocol’s signature, the Respondent was in default of
payment of 3 monthly salaries, and the Player was willing to receive his outstanding salaries
on a prorate basis instead of terminating the contract.
27. In conclusion, the Chamber decided that the Protocol was valid and binding to the parties
and, therefore, superseded the Contract.
Was the employment relationship terminated with just cause?
28. Subsequently, the Chamber turned its attention to determine whether the employment
relationship was terminated by the Claimant with just cause.
29. The Chamber further recalled its long-standing jurisprudence, according to which only a
breach or misconduct which is of a certain severity justifies the termination of a contract
without prior warning. In other words, only when there are objective criteria which do not
reasonably permit to expect the continuation of the employment relationship between the
parties, a contract may be terminated prematurely. Hence, if there are more lenient
measures which can be taken in order for an employer to assure the employee’s fulfilment
of his contractual duties, such measures must be taken before terminating an employment
contract. A premature termination of an employment contract can only be an ultima ratio.
30. The Chamber decided that at the moment of termination, i.e., on 21 June 2024, the
Claimant had just cause to terminate the employment relationship pursuant to art. 14 par.
2 of the Regulations considering that (i) the Claimant sent a default notice requesting more
than 3 salaries on 16 May 2024; (ii) the Parties concluded a Protocol in order to arrange the
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REF. FPSD-15336
outstanding payments and the Club still failed to pay the 1st instalment; and (iii) the wording
of the Protocol allowed the Player to terminate the employment relationship in case of nonpayment within 10 days of the stipulated deadline: “In the event that any of the instalments
referred above is not paid by the Club within 10 days from the stipulated deadline, the Parties
accept and undertake that the Player is entitled to terminate the employment contract between
the parties immediately without any warning notice”.
ii. Consequences
31. Having stated the above, the Chamber turned its attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
32. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the Claimant, are USD 100,000, an amount
that was to be paid on 7 June 2024 according to the Protocol.
33. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the Protocol at the moment of the termination, i.e., USD
100,000.
34. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Chamber decided to award the Player interest
at the rate of 5% p.a. on the outstanding amount as from 8 June 2024 until the date of
effective payment.
35. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the Claimant by the Respondent 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.
36. 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.
37. In this regard, the Chamber observed that neither the Contract nor the Protocol stipulated
a compensation clause. As a consequence, the Chamber determined that the amount of
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REF. FPSD-15336
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.
38. Bearing in mind the foregoing as well as the claim of the Claimant, the Chamber proceeded
with the calculation of the monies payable to the Claimant under the terms of the Protocol
from the date of its unilateral termination until its end date. Consequently, the Chamber
concluded that the amount of USD 787,000 (USD 213,000 + USD 24,000 + USD 550,000)
serves as the basis for the determination of the amount of compensation for breach of
contract.
39. 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.
40. Indeed, the Player found employment with the club Qarabag Fk. In accordance with the
pertinent employment contract, the Player was entitled to USD 300,000 for the duration of
the new contract. Therefore, the Chamber concluded that the Player mitigated his damages
in the total amount of USD 300,000.
41. 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. In the case at hand, the Chamber confirmed that the Contract’s
termination took place due to said reason, i.e., overdue payables by the Club, and therefore
decided that the Player shall receive additional compensation.
42. In this respect, the DRC decided to award additional compensation in the amount of USD
120,000, i.e., three times the Player’s monthly remuneration.
43. Consequently, 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 USD 607,000 to the Player (i.e., USD 787,000 - USD 300,000 + USD 120,000), which was
to be considered a reasonable and justified amount of compensation for breach of contract
in the present matter.
44. Lastly, taking into consideration the Player’s request as well as the constant practice of the
Football Tribunal in this regard, the Chamber decided to award the Player interest on said
compensation at the rate of 5% p.a. as of 21 June 2024 until the date of effective payment.
pg. 13
REF. FPSD-15336
iii. Compliance with monetary decisions
45. 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. In this regard, the Chamber highlighted that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist, in principle, of a ban from
registering any new players, either nationally or internationally, up until the due amounts
are paid.
46. Notwithstanding the above, the Chamber wished to remark that in accordance with art. 24
par. 3 of the Regulations, the aforementioned consequences may be excluded where the
pertinent FIFA deciding body has already imposed on the same party a sporting sanction
on the basis of article 12bis, 17 or 18quater of the Regulations.
47. In this respect, the Chamber recalled that by means of a decision of the Football Tribunal
passed on date 23 September 2024 and notified on 4 November 2024, a transfer ban has
been imposed on the Respondent pursuant to art. 17 par. 4 of the Regulations, namely in
the case FPSD-14997.
48. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall not
apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
49. In view of the above, the Chamber decided that if the aforementioned sum plus interest is
not paid within 30 days of notification of this decision, the present matter shall be
submitted, upon request of the Claimant, to the FIFA Disciplinary Committee for its
consideration and formal decision.
50. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form, which is attached
to the present decision.
d. Costs
51. 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,
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REF. FPSD-15336
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
52. 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.
53. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 15
REF. FPSD-15336
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Şaxrudin Magomedoviç Magomedaliyev, is partially accepted.
2.
The Respondent, Adana Demirspor A.S., must pay to the Claimant the following amounts:
- USD 100,000 as outstanding remuneration plus 5% interest p.a. as from 8 June 2024
until the date of effective payment;
- USD 607,000 as compensation for breach of contract plus 5% interest p.a. as from 21
June 2024 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.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-15336
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
anonymised or a redacted version (cf. article 17 of the Procedural Rules Governing the Football
Tribunal).
CONTACT INFORMATION
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396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 17