Dispute Resolution Chamber
Texto da decisão
REF 20-01472
Decision of the
Dispute Resolution Chamber
passed on 25 March 2021
regarding an employment-related dispute concerning
the player Milan Mitrovic
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Daan de Jong (Netherlands), member
Alexandra Gómez Bruinewoud (Netherlands) (Uruguay), member
CLAIMANT :
Milan Mitrovic, Serbia
Represented by Mr Çağar Akoglu
RESPONDENT:
Adana Demirspor Kubülü Dernegi, Turkey
Represented by Mr Umur Varat
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I.
Facts
1.
On 3 August 2018, the Serbian player, Milan Mitrovic (hereinafter: the ‘Claimant’ or ‘player’) and
the Turkish club, Adana Demirspor Kubülü Dernegi (hereinafter: the ‘Respondent’ or ‘club’)
concluded an employment agreement (hereinafter: the ‘contract’) valid from 3 August 2018 to
31 May 2020.
2.
According to article 3 of the contract, the Respondent agreed to pay to the Claimant the following
amounts:
a)
For the 2018/2019 Football season:
-
Advance Payment: EUR 100,000 (on signature date of the contract)
-
Monthly Salary: EUR 30,000 (August 2018 to May 2019)
-
The provisions of this article further states that the club shall pay EUR 50,000 in case the club
becomes champion on Spor Toto 1. League at the end of 2018/2019 football season.
b)
For the 2019/2020 Football season (if Club will be in the Super League):
-
Advance Payment: EUR 100,000 (until 30 September 2019)
-
Monthly Salary: EUR 30,000 (August 2019 to May 2020)
-
The provisions of this article further states that the club shall pay EUR 50,000 in case the
player achieves to play in 25 official league matches in Super League at the 2019/2020
football season.
c)
For the Season 2019 /2020, (If Club will be in Spor Toto 1. Division)
-
Advance Payment: EUR 100,000 (until 30 September 2019)
-
Monthly Salary: EUR 30,000 (August 2019 - May 2020)
3.
According to the Claimant, the Respondent failed to fulfil its financial obligations towards the
Claimant by not paying the salaries of the Claimant as contractually stipulated and agreed.
4.
On 9 October 2020, the Claimant submitted a claim to FIFA without issuing any prior default
notices to the Respondent, requesting FIFA to hold the Respondent liable for the payment of EUR
110,000 as outstanding remuneration, as well as interest as from the respective due dates as
follows:
-
EUR 20,000 as from 25 March 2020 (partial salary of February);
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5.
EUR 30,000 from 25 April 2020 (salary of March);
EUR 30,000 as from 25 May2020 (salary of April); and
EUR 30,000 as from 25 June 06.2020 (salary of May).
In its reply to the claim, the Respondent contested the competence of FIFA to deal with the matter
at hand, by stating that the Turkish Football Federation (‘TFF’) is competent to deal with the matter
and its competence is derived from the following provisions of the contract:
a)
Article 11
-
Both parties accept that the TFF law boards are authorized and responsible to resolve any
disputes that may arise between them.
b)
Article 9
-
Dispute Resolution Board (Uyusmazhk Cozilm Kurulu) has exclusive jurisdiction in case of any
dispute between the parties arising from this Contract. Parties can only appeal to TFF
Arbitration Chamber (TFF Tahkim Kurulu) against Dispute Resolution Board's decisions.
6.
However, the Respondent indicated that if FIFA deem itself competent, the Respondent argues
that it does not have a debt of EUR 110,000, as the Respondent paid a total of EUR 689,125 plus
TRY 75,000 (approximately EUR 10,435) to the Claimant from the start of the contract.
7.
Furthermore, the Respondent claims that due to the COVID-19 outbreak and in accordance with
Turkish Law Code No. 7244 and Code no. 4857, employers had the right to send employees on
leave without pay and that FIFA accepts superiority of national law and the contractual autonomy
of the parties according to the COVID-19 FIFA Football Regulatory regulations as issued.
8.
Accordingly, the Respondent indicated that they do not have to pay the player's monthly salaries
for three months which equals to EUR 90,000 and requested the following relief:
- that FIFA reject the case due to the fact that FIFA does not have competence to deal with the
matter, the Turkish law chambers has jurisdiction to decide on this dispute, and
- in the event that FIFA declares itself competent, that it declares that the Respondent has no
debt to the Claimant and to reject the claim.
9.
In its reply to the Respondent’s position, the Claimant reaffirmed that the FIFA Dispute Resolution
Chamber has jurisdiction to decide on this dispute. According to the Claimant, in the Turkish
translated version of the contract, the player has a right to choose the deciding body.
10. In terms of the competence of the TFF law boards, the Claimant is of the view that it is not possible
to appoint an arbitrator before TFF law boards as a player and hence the principle of equal
representation of players and clubs is unfulfilled.
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11. Concerning the allegation submitted by the Respondent, that it paid TRY 75,000 to the Claimant,
the Claimant argued that this is a false statement, as all contractual payments are in EUR and not
TRY. In this respect, the player explains that the amount of TRY 75,000 was paid as match winning
bonuses.
12. The Claimant further indicated that the Turkish National Law, referred to the following:
a)
employers must pay employees who continue working during Covid-19 pandemic,
furthermore the Claimant continued working during the pandemic and was never sent on
leave without pay by the Respondent;
b)
Code no:7244 and Code no:4857, as referenced by the Respondent is not applicable to the
case at hand; and furthermore
c)
sportsmen are not considered as employees.
13. Additionally the Claimant indicated that the payment receipts for the alleged payments submitted
by the Respondent in its reply should be disregarded for the following reasons:
a)
In terms of art. 9 par. 1 lit. e) of the Procedural Rules, according to which all documents of
relevance to the dispute must be submitted in the original version, and, if need be, translated
into one of the four official FIFA languages (English, Spanish, French, and German).
b)
All of the documents are in Turkish and not translated into one of the official FIFA languages.
c)
The Respondent failed to indicate the nature of each payment allegedly made to the
Claimant, from the documentation submitted by the Respondent, it is impossible to
determine whether the alleged payments corresponded to salaries, advance payments, and
rent allowances or to payments of another nature.
14. Furthermore, in the statement of claim, the Claimant requested that the Respondent pay the
overdue amount of EUR 110,000 with its interest from the due dates until the actual payment
date, however after review of the Respondent’s petition the Claimant requested to amend its
claim in that the Respondent instead pay the amount of EUR 110,875, with interest from the
due dates as follows:
-
EUR 20,875 as from 25 March 2020 (partial salary of February);
EUR 30,000 from 25 April 2020 (salary of March);
EUR 30,000 as from 25 May 2020 (salary of April); and
EUR 30,000 as from 25 June 2020 (salary of May).
15. Furthermore, the Claimant requested that the Respondent be ordered to pay legal costs.
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16. In its reply to the Claimant’s amended claim , the Respondent reaffirmed that the FIFA Dispute
Resolution Chamber has no jurisdiction to decide on this dispute and that the Respondent has
no debt to the Claimant and reaffirmed its request to reject the Claimant’s claim.
II. Considerations of the Dispute Resolution Chamber
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 submitted to FIFA on 9 October 2020. 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.
2.
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. a) and b) of the
Regulations on the Status and Transfer of Players (edition February 2021), 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 Serbian player and a
Turkish club.
3.
However, the Chamber acknowledged that the Respondent contested the competence of FIFA’s
deciding bodies based on art. 9 and art.11 of the employment contract, which refers to the
Arbitration Chamber within the Turkish Football Federation (hereinafter: “Turkish NDRC”).
4.
On the other hand, the Chamber noted that the Claimant insisted on the competence of the FIFA
DRC to adjudicate on the claim lodged by it against the Respondent.
5.
Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. a)
and b) of the Regulations on the Status and Transfer of Players (edition February 2021), it is
competent to deal with a matter as such, unless an independent arbitration tribunal, guaranteeing
fair proceedings and respecting the principle of equal representation of players and clubs, has
been established at national level within the framework of the association and/or a collective
bargaining agreement. With regard to the standards to be imposed on an independent arbitration
tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010, dated
20 December 2005.
6.
Therefore, while analysing whether it was competent to hear the present matter, the Dispute
Resolution Chamber considered that it should, analyse whether the employment contract at the
basis of the present dispute contained a clear jurisdiction clause.
7.
In this respect, the Chamber recalled that article 9 of the contract stipulated the following:
“Dispute Resolution Board (Uyusmazhk Cozilm Kurulu) has exclusive jurisdiction in case of any
dispute between the parties arising from this Contract. Parties can only appeal to TFF Arbitration
Chamber (TFF Tahkim Kurulu) against Dispute Resolution Board's decisions.”
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8.
Having examined the relevant provision, the Chamber concluded that article 9 does in principle
constitute a clear and unambiguous jurisdiction clause in favour of the Turkish NDRC.
9.
However, after having analysed the information on file, the members of the Chamber noted that
the Respondent did not provide any documentary evidence on the basis of which it could be
concluded that the Turkish NDRC would be compliant with the minimum procedural standards
for independent arbitration tribunals as laid down in art. 22 lit. b) of the Regulations on the Status
and Transfer of Players, in the FIFA Circular no. 1010 as well as in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations. In this regard, the members of the Chamber
pointed out that in particular, it could not established that the Turkish NDRC fully respects the
principle of equal representation.
10. On account of all the above, the Chamber established that the Respondent’s objection towards
the competence of FIFA to deal with the present matter has to be rejected, and that the Dispute
Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status
and Transfer of Players, to consider the present matter as to the substance.
11. 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 9 October 2020, the October 2020 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
12. The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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.
13. The Chamber first of all 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.
14. Moreover, 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.
15. In doing so, the members of the Chamber started by acknowledging that the parties to the dispute
had concluded an employment contract on 3 August 2018, valid as from the date of signature
until 31 May 2020.
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16. In continuation, the Chamber noted that the Claimant lodged a claim against the Respondent on
9 October 2020, claiming outstanding remuneration for the months of February, March, April and
May 2020 in the amount of EUR 110,875.
17. The Chamber took note of the fact that the parties strongly dispute the alleged unilateral
variation to the contract, which the Respondent holds to have made when it decided to withhold
the contractual agreed remuneration to the Claimant for the months of February, March, April
and May 2020 in view of the (financial) consequences of the COVID-19 pandemic.
18. In this context, the Chamber noted that, in order to justify the alleged unilateral variation, the
Respondent alleged that due to the outbreak of the COVID-19 pandemic, it was allegedly allowed
in accordance with Turkish Law in that employers could send their employees on unpaid leave.
19. Before entering into the analysis whether said unilateral variation of the contract could be
accepted, the Chamber first recalled that, in light of the outbreak of the COVID-19 pandemic,
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.
20. 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.
Those two documents will hereinafter be referred to as “the FIFA Covid-19 Guidelines”.
21. 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. In this regard, the guidelines identify circumstances under which a
unilateral variation of the agreement may be justified. Precisely, the FIFA COVID-19 Guidelines
mention the following:
“Unilateral decisions to vary agreements will only be recognised where they are made in
accordance with national law or are permissible within CBA structures or another collective
agreement mechanism.
Where:
a. clubs and employees cannot reach an agreement, and
b. national law does not address the situation or collective agreements with a players’ union are
not an option or not applicable,
Unilateral decisions to vary terms and conditions of contracts will only be recognised by FIFA’s
Dispute Resolution Chamber (DRC) or Players’ Status Committee (PSC) where they were made in
good faith, are reasonable and proportionate.
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When assessing whether a decision is reasonable, the DRC or the PSC may consider, without
limitation:
whether the club had attempted to reach a mutual agreement with its employee(s);
the economic situation of the club;
the proportionality of any contract amendment;
the net income of the employee after contract amendment;
whether the decision applied to the entire squad or only specific employees.
Alternatively, all agreements between clubs and employees should be “suspended” during any
suspension of competitions (i.e. suspension of football activities), provided proper insurance
coverage is maintained, and adequate alternative income support arrangements can be found for
employees during the period in question”.
22. Analysing the respective circumstances, the members of the Chamber noted that the Respondent
failed to provide documentary evidence, on the basis of which it could be concluded that the
alleged unilateral variation, i.e. the non-payment of the salaries for the period between February
and May 2020, was made in accordance with national law. The legal framework of the
Turkish law, specifically Code No. 7244 and Code no. 4857 which the Respondent relies on in
support of its argument, was not submitted.
23. Furthermore, it does not appear that the Respondent duly informed the Claimant about the
alleged fact that it would be entitled to withhold payment of his salaries and that it would
effectively do so. Already at this point, the members of the Chamber concluded that no
unilateral variation was made and that as a result thereof, the FIFA COVID-19 Guidelines are
not applicable to the matter at hand.
24. The Chamber further noted that the Respondent submitted several e-receipts, reflecting alleged
payments made by the Respondent to the Claimant. It appears however that the said documents
were not translated into one of the official FIFA languages. As a result thereof, and with reference
to the contents of art. 9 par. 1 of the Procedural Rules, the Chamber decided to not take into
account said e-receipts.
25. In view of all the foregoing, the members of the Chamber reached the conclusion that the
Respondent, without any valid reason or a justification based on the FIFA COVID-19 Guidelines,
withheld payment of the salaries of the Claimant for the period between February and May 2020.
26. In conclusion, the Chamber decided – in line with the principle of pacta sunt servanda - that the
Respondent is liable to pay the Claimant outstanding remuneration in the amount of EUR
110,875, corresponding to salaries due to him for the months of February, March, April and May
2020.
27. Taking into account the Claimant’s claim and the longstanding jurisprudence of the Chamber in
this respect, it was decided to award the Claimant interest of 5% p.a. on the amounts payable as
from the respective due dates.
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28. In addition, as regards the claimed legal expenses, the Chamber referred to art. 18 par. 4 of the
Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance
with which no procedural compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the Chamber decided to reject the Claimant’s request
relating to legal expenses.
29. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any
of the parties.
30. 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.
31. 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.
32. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent
does not pay the amounts due to the Claimant 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.
33. 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.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Milan Mitrovic, is partially accepted.
2.
The Respondent, Adana Demirspor Kubülü Dernegi, has to pay to the Claimant, the amount of
EUR 110,875 as outstanding remuneration plus 5% interest p.a. as follows:
5% interest p.a. on the amount of EUR 20,875 as from 26 March 2020 (partial salary of
February) until the date of final payment;
5% interest p.a. on the amount of EUR 30,000 as from 26 April 2020 (salary of March) until
the date of final payment;
5% interest p.a. on the amount of EUR 30,000 as from 26 May 2020 (salary of April) until
the date of final payment; and
5% interest p.a. on the amount of EUR 30,000 as from 26 June 2020 (salary of May) until
the date of final payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent 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).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent 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.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in 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.
7. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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