Labour Disputes
Texto da decisão
REF. FPSD-15572
Decision of the
Dispute Resolution Chamber
passed on 8 October 2024
regarding an employment-related dispute concerning the
player Nihad Mujakic
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Peter LUKASEK (Slovakia), Member
Oleg ZADUBROVSKIY (Russia), Member
CLAIMANT:
Nihad Mujakic, Bosnia and Herzegovina
Represented by Koray Akalp
RESPONDENT:
MKE Ankaragücü, Türkiye
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REF. FPSD-15572
I. Facts of the case
1.
On 2 August 2022, the Bosnian player Nihad Mujakic (hereinafter, the Claimant or the
Player) and the Turkish club MKE Ankaragücü (hereinafter, the Respondent or the Club)
concluded an employment contract (hereinafter, the Contract) valid as from 2 August 2022
until 31 May 2026.
2.
On 10 May 2024, the Player put the Club in default granting it a deadline of fifteen days to
pay EUR 149,000 EUR as per the following amounts and concepts:
- January 2024 salary: EUR 31,000 net;
- February 2024 salary: EUR 31,000 net;
- March 2024 salary: EUR 31,000 net;
- April 2024 salary: EUR 31,000 net; and
- Bonus (25 matches as starting eleven): EUR 25,000 net.
3.
On 12 June 2024, the Player put the Club in default requesting the payment of EUR 133,500
net as per the following amounts and concepts, granting it a deadline of fifteen days to
comply its contractual obligations.
- February 2024 salary: EUR 31,000 net;
- March 2024 salary: EUR 31,000 net;
- April 2024 salary: EUR 31,000 net;
- May 2024: EUR 31,000 net; and
- Bonus (25 matches as starting eleven): EUR 9,500 net.
4.
On 23 June 2024, the Player and the Club (hereinafter, jointly referred to as the Parties)
concluded the so-called “Mutual Termination Agreement & Release Letter” (hereinafter, the
Termination Agreement) in accordance with which:
“(…)
4. The Player has 151.000 Euros net unpaid receivables. The player hereby has irrevocably
waived 60.000 Euros net unpaid receivables as compensation for early termination of the
contract. The Club hereby accepts to pay to the Player 91.000 (Ninety-One Thousand) Euros net
unpaid receivables on 17 July 2024.
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REF. FPSD-15572
5. The Player confirms and undertakes that he is not going to claim anything except the above
mentioned amount (91.000 Euros net). The Player hereby has irrevocably waived all his financial
rights except from the above-given 91.000 Euros net for the employment relationship with the
Club”.
5.
On 18 July 2024, the Player requested the Club the payment of EUR 91,000 net as per the
Termination Agreement. The Player granted the Club a deadline of seven days to comply
with its obligations.
II. Proceedings before FIFA
6.
On 13 August 2024, the Claimant filed the claim at hand before FIFA. A summary of the
Parties’ position is detailed below.
a. Position of the Claimant
7.
According to the Player, after his default notice of 10 May 2024 the Club only made a partial
payment of EUR 46,400 net. Furthermore, after sending his default notice dated 12 June
2024, the Club allegedly “pressured and forced the Claimant verbally to waive his receivables
and therefore the Claimant had no choice but to sign the Mutual Termination Agreement &
Release Letter on 23 June 2024 to become a free agent”.
8.
The Player sustained that the Respondent again failed to pay the amount agreed under the
Termination Agreement.
9.
The Player requested the following relief:
“By reserving our every legal right to claim the remaining instalments and for the facts and legal
arguments that were developed above, the FIFA Dispute Resolution Chamber is respectfully
requested:
1. To accept the claim of player Nihad Mujakic,
2. To condemn [the Respondent] to pay in favour of the Claimant the total unpaid and overdue
remuneration of Net EUR 91,000 – along with the interest rate of 5% p.a. starting from 17 July
2024 until the date of effective payment.
3. To establish that the costs of the present arbitration procedure shall be borne by the
Respondent”.
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REF. FPSD-15572
b. Position of the Respondent
10. Despite being invited to do so, the Club failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 13 August 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.
12. 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 Bosnian player
and a Turkish club.
13. 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 13 August 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
14. 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
15. 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
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REF. FPSD-15572
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.
i. Main legal discussion and considerations
16. The Chamber then moved to the substance of the matter, and took note of the fact that
the present claim concerns outstanding amounts arising from the Termination Agreement
concluded between the Parties on 23 January 2024, in accordance with which:
“The Player has 151.000 Euros net unpaid receivables. The player hereby has irrevocably waived
60.000 Euros net unpaid receivables as compensation for early termination of the contract. The
Club hereby accepts to pay to the Player 91.000 (Ninety-One Thousand) Euros net unpaid
receivables on 17 July 2024.
The Player confirms and undertakes that he is not going to claim anything except the above
mentioned amount (91.000 Euros net). The Player hereby has irrevocably waived all his financial
rights except from the above-given 91.000 Euros net for the employment relationship with the
Club”.
17. On account of the foregoing provision, the Chamber observed that the Club acknowledged
being in default in the amount of EUR 151,000. Additionally, that the Player agreed to waive
the sum of EUR 60,000 and, consequently, that he would receive EUR 91,000.
18. In this respect, the Chamber noted that the Player argued that the Club pressured and
forced him to waive his remuneration and that therefore he had no choice but to sign the
Termination Agreement on 23 June 2024 in order to become a free agent. Furthermore,
the Player sustained that the Club failed to pay EUR 91,000 agreed in the Termination
Agreement, and thus claimed being entitled to this amount. The Chamber also noted that
the claim remained uncontested by the Respondent.
19. In this context, the Chamber initially observed that the Player did not advance any
documentation in support of his position or any proof of unfair negotiations or duress.
Consequently, the Chamber determined that the Claimant did not meet his burden of proof
in line with art. 13 par. 5 of the Procedural Rules, and decided to set aside his
argumentation in this regard.
20. Without prejudice to the foregoing, the Chamber did not overlook that the Termination
Agreement constituted a waiver for work already performed, as it is clearly stipulated
therein. In this respect, the DRC recalled that the first conclusion that follows from the
jurisprudence of the Court of Arbitration for Sport (CAS) is that waiving of salaries for work
already performed cannot be validly made (cf., inter alia, CAS 2020/A/7627 and
2016/A/4582), to which the Chamber adhered.
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REF. FPSD-15572
21. In line with the abovementioned jurisprudence, the DRC considered that, in casu, the
waiver could not be deemed valid, given that the Termination Agreement provided no
reason for which such waiver was made. Indeed, the Chamber pointed out that there may
be cases in which a waiver of remuneration could be considered, subject to the player being
granted an equivalent consideration in exchange of such waiver, which in the present case
could not be established. In fact, the Player’s consideration was receiving far less than what
he was entitled to only in exchange for the termination of the Contract. Accordingly, the
Chamber determined that the waiver provided in the Termination Agreement was not
valid.
22. Nonetheless, the DRC noted that, in his claim, the Player limited his request to EUR 91,000,
corresponding to the amount agreed under the Termination Agreement, without disputing
the waiver provided therein.
23. On account of the foregoing, and based on the legal principle ne ultra petita, the Chamber
concluded that it was not in a position to award the overall outstanding remuneration
acknowledged by the Club in the Termination Agreement, and that its analysis was limited
to the enforceability of the claimed amount, i.e., EUR 91,000.
24. Accordingly, 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. In doing so, 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 Termination Agreement concluded between the Parties.
Nonetheless, the Chamber recalled that it remained uncontested by the Respondent that
the payments remained outstanding.
25. In view of the foregoing considerations 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 Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the Termination Agreement, namely EUR 91,000.
26. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% per annum on the outstanding amounts as from 18 July 2024 until the date of effective
payment.
ii. Compliance with monetary decisions
27. 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
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REF. FPSD-15572
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
28. 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.
29. 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.
30. 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.
31. 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
32. 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.
33. 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.
34. 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-15572
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nihad Mujakic, is accepted.
2.
The Respondent, MKE Ankaragücü, must pay to the Claimant the following amount(s):
EUR 91,000 net as outstanding amount plus 5% interest per annum as from 18 July 2024
until the date of effective payment.
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 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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-15572
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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