Labour Disputes
Texto da decisão
REF FPSD-4187
Decision of the
Dispute Resolution Chamber
passed on 7 July 2022
regarding an employment-related dispute concerning the player Marcus Pedersen
BY:
Frans de Weger (The Netherlands), Chairperson
Peter Lukasek (Slovakia), member
José Luis Andrade (Portugal), member
CLAIMANT / COUNTER-RESPONDENT:
Club Ankaraspor, Türkiye
Represented by Arda Zenginpedük
RESPONDENT / COUNTER-CLAIMANT:
Player Marcus Pedersen, Norway
Represented by Tugce Orhan
RESPONDENT 2:
Club Tuzlaspor, Türkiye
Represented by Ercan Sevdimbas
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I.
Facts of the case
1.
On 21 January 2021, the Turkish club, Ankaraspor (hereinafter: the Claimant/CounterRespondent) and the Norwegian player, Marcus Pedersen (hereinafter: the Respondent/CounterClaimant) signed an employment contract valid as from said date until 31 May 2022.
2.
In accordance with the employment contract, the Claimant undertook to pay to the Respondent
inter alia the following net remuneration:
i.
-
Season 2020/2021
EUR 60,000 as salaries, payable as follows:
• 25.000 EUR on 21.01.2021
• 8.750 EUR on 28.02.2021
• 8.750 EUR on 30.03.2021
• 8.750 EUR on 30.04.2021
• 8.750 EUR on 30.05.2021
ii.
-
Season 2021/2022
EUR 100,000 as salaries, payable as follows:
• 10.000 EUR on 30.09.2021
• 10.000 EUR on 31.10.2021
• 10.000EURon30.11.2021
• 10.000 EUR on 31.12.2021
• 10.000 EUR on 31.01.2022
• 10.000 EUR on 28.02.2022
• 10.000 EUR on 31.03.2022
• 10.000 EUR on 30.04.2022
• 10.000 EUR on 31.05.2022
• 10.000 EUR on 30.06.2022.
3.
Furthermore, Clause 3, section "Special provisions", point 1 to the employment contract
(hereinafter: the buy-out clause) stipulates that: "The parties agree that the player will terminate
this agreement and all other contractual relationships with the club between 01.08.2021 and
15.08.2021 for transfer to in a Super League Club. The player agrees and undertakes to pay the
club EUR 300,000 for this condition".
4.
On 18 June 2021, the Respondent sent the Claimant and the Turkish Football Federation (TFF) a
"termination letter", in which he explained that the Claimant was relegated to the 3rd division at
the end of the 2020/2021 season and that such relegation had already been approved and
registered by the TFF at the meeting of the Executive Committee held on 29 May 2021. As per the
Respondent, "pursuant to the document released by the Turkish Football Federation in June 2021,
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the club participating in Turkish 2. Division cannot field any foreign player and cannot register
them. As a result of the mentioned rule of the Turkish Football Federation, the player is ineligible
to play for the club at 2021-2022 football season".
5.
Contextually, the Respondent stated that “taking part in official games and being eligible to play
are the rights of a player and an obligation for the club, as per the well-established jurisprudence
of FIFA and CAS. If the latter are not guaranteed, he cannot pursue his career as a professional
football player.” Thus, “taking into account the above-stated rules which makes it impossible for
the player to player for the club and fulfill his obligations stemming from the employment contract
and the mentioned jurisprudence, the player has no other option but to inform the club and also
the Turkish Football Federation that the employment contract becomes invalid and shall be
deemed cancelled automatically. Consequently, the player hereby asks the Turkish Football
federation to deregister the player and set him as a free agent due to the mentioned legal
circumstances and also register to its records that the employment contract has no further binding
effect on the parties and cancelled in that regard".
6.
On 25 June 2021, the TFF confirmed the validity of the unilateral termination by the Respondent.
7.
On 5 August 2021, the Respondent and the Turkish club, Tuzlaspor (hereinafter: Respondent 2)
signed an employment contract valid as from the same date until 31 May 2022, according to which
the Respondent 2 undertook to pay the Respondent a total of EUR 120,000 for the season
2021/2022.
8.
On 12 November 2021, the Respondent and the Respondent 2 mutually agreed on the early
termination of the employment contract against the payment of EUR 12,000 to the Respondent.
II. Proceedings before FIFA
9.
On 3 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 / Counter-Respondent
10. According to the Claimant, the Respondent would have not been entitled to unilaterally terminate
the employment contract for the mere fact of the Claimant’s relegation to the Turkish 2. Division.
11. In this respect, the Claimant argued that a club’s relegation cannot constitute a breach of contract
towards a player, even when the relevant domestic regulations prohibit the registration of said
player because he is a foreigner.
12. Conversely, the Claimant pointed out that the employment contract had remained binding and
that it would be still possible to "transfer the player to any other club and make profit out of the
investment made for him".
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13. Furthermore, the Claimant stated that the Respondent did not communicate his intention in
advance and did not concede time to find an amicable solution, as the registration period started
on 17 June 2021 and the Respondent sent his termination letter on 18 June 2021.
14. In addition to the above, the Claimant argued that both parties had agreed in the employment
contract that the amount of EUR 300,000 would be due to the Claimant in case the Respondent
had been transferred to a Super League club, and according to the Claimant said amount is a clear
indication of the value attributed to the Respondent in the market and represents the loss of the
Claimant by not having been able to sell his player.
15. The requests for relief of the Claimant, accordingly, were the following:
a. the player terminated the contract without just cause;
b. the player and his new club should be held liable to pay compensation in the amount
of EUR 300,000, plus interest of 5% p.a. as from the date of termination;
c. sporting sanctions should be applied on the player and on the club;
d. the respondents should bear the costs of the proceedings.
b. Position of the Respondent / Counter-Claimant
16. According to the Respondent, as from the moment of the Claimant’s relegation, he found himself
in the objective impossibility of proceeding with his professional career as a footballer.
17. In fact, according to the Respondent, the same TFF accepted his request for unilateral termination
because it was clear that, in accordance with the relevant regulations, the Claimant could have
not fielded the Respondent for the entire following season.
18. Furthermore, the Respondent objected to the validity of the buy-out clause inserted in the
employment contract, stating that said clause shall not be applicable in casu.
19. In particular, the Respondent stressed the fact that the buy-out clause has been stipulated only in
favour of the Claimant and for an excessive amount, namely higher than the entire Respondent’s
yearly salary, elements that would render it contrary to the relevant criteria established by FIFA
and CAS, hence it shall be disregarded.
20. Beside the above, the Respondent decided to lodge a counter-claim against the Claimant, arguing
that the latter failed to pay the salary due for the month of May 2021, namely in the amount of
EUR 8,750.
21. The requests for relief of the Respondent, accordingly, were the following:
-
To dismiss the claim in its entirety;
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-
To award the Respondent/Counter-claimant the sum of EUR 8,750 as outstanding
remuneration plus interest as from the relevant due date;
-
To charge all the judicial costs and attorney ship fees on the Claimant/Counter-Respondent
c. Position of the Respondent 2
22. In its Reply, the Respondent 2 rejected the claim lodged against it and any type of joint liability to
pay compensation or the imposition of a sporting sanction, as it did not induce the Respondent to
breach the contract.
23. In this respect, the Respondent 2 argued that the Respondent did not terminate the contract, but
merely requested the deregistration due to the ineligibility to play for the Claimant. Furthermore,
the Respondent pointed out that the Respondent requested the deregistration on 18 June 2021
while the new employment contract was only signed on 5 August 2021.
24. Furthermore, the Respondent 2 stated that in any event the Respondent had just cause to
terminate the former employment contract as sustained by the latter, namely because of the
binding domestic provisions preventing any foreign player from being registered with a club
participating to the third Turkish division.
25. Finally, the Respondent 2 deemed that the aforementioned buy-out clause is inapplicable to the
case at stake because the compensation requested by the Claimant is only based on an estimation
of probabilities, but the amount of EUR 300,000 by no means would reflect any damage suffered
by the Claimant. Furthermore, still according to the Respondent 2, the prerequisites for the
application of said buy-out clause were not given, as the Respondent was not transferred to
another club.
26. In conclusion, the Respondent 2 aligned with the Respondent/Counter-Claimant’s position and
requested the dismissal of the case in its entirety.
a. Final comments of the Claimant/Counter-Respondent on the Counterclaim
27. In its reply to the counterclaim, the Claimant/Counter-Respondent rejected the
Respondent/Counter-Claimant’s request for the payment of EUR 8,750 as outstanding
remuneration and objected that the total remuneration due for the 2020/2021 season,
specifically in the amount of EUR 60,000, was fully paid.
28. In particular, the Claimant/Counter-Respondent argued that the relevant payments have been
made according to the following breakdown:
a. 25.000 EUR ON 21.01.2021
b. 8.750 EUR ON 22.03.2021
c. 17.500 EUR ON 20.04.2021
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d. 5.000 EUR ON 21.06.2021
e. 3.750 EUR ON 19.07.2021.
29. Accordingly, the Claimant/Counter-Respondent requested to reject the counterclaim in its
entirety.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
30. 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 presented to FIFA on 3 November 2021 and submitted for decision on 7
July 2022. Taking into account the wording of art. 34 of the June 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.
31. Subsequently, 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 lit. a) of the Regulations
on the Status and Transfer of Players (July 2022 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 Norwegian player and a Turkish club.
32. 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 (July 2022 edition) and considering that the
present claim was lodged on 3 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
33. 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
34. Its 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 abovementioned facts as well as the arguments and the documentation on file. However, the Chamber
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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
35. The foregoing having been established, the Chamber moved to the substance of the matter, and
took note of the fact that the parties strongly dispute the right of the Respondent/CounterClaimant to unilaterally terminate the employment contract with the Claimant/CounterRespondent on 18 June 2021.
36. In this context, the Chamber acknowledged that its task was to establish, based on the evidence
presented by the Parties, whether on the said date the Respondent/Counter-Claimant had in fact
just cause to terminate the employment agreement stipulated with the Claimant/CounterRespondent on 21 January 2021.
37. Furthermore, the Chamber took note of the counterclaim lodged by the Respondent/CounterClaimant, who argued that the Claimant/Counter-Respondent failed to comply with its financial
obligation related to the salary due for the month of May 2021, namely in the amount of EUR
8,750.
38. In this respect, the Chamber acknowledged that it had also to determine the existence of the
alleged outstanding remunerations.
ii. Assessment of the claim
39. With regard to the unilateral termination of the employment contract, the DRC noted that the
motivation alleged by the Respondent/Counter-Claimant was the relegation of the
Claimant/Counter-Respondent’s team to the Turkish 2. Division, which corresponds to the third
national league in Turkey.
40. In this respect, the Chamber received confirmation from the Parties that by virtue of TFF relevant
domestic regulations, a team that was relegated to the afore-said division shall not be entitled to
register nor to field any foreign player, hence such player would become ineligible for the entire
relevant season.
41. Furthermore, the Chamber observed that the Respondent/Counter-Claimant received
confirmation of the unilateral termination from the same TFF on 25 June 2021.
42. In this context, the Chamber deemed that since the moment of the relegation it had become
evident that the Respondent/Counter-Claimant could have not participated in the entire following
sporting season with the team of the Claimant/Counter-Respondent, whereas the latter was
supposed to be already aware of all the potential risks connected with the event of the relegation
at the moment of concluding the employment contract, namely because the labour agreement
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specifically referred to all TFF regulations, about which any affiliated club is expected to be
informed.
43. Accordingly, the Chamber found irrelevant the Claimant/Counter-Respondent’s objection
following which the Respondent/Counter-Claimant would have not conceded enough time to the
former party in order to find an amicable solution, namely because even if the
Respondent/Counter-Respondent had informed the Claimant/Counter-Respondent in advance of
his intention to terminate the contract, the latter would have not still been able to register him or
provide him with the chance to play in official matches.
44. In this respect, the Chamber wished to remark that, in line with FIFA DRC and CAS longstanding
jurisprudence, it is a well-recognized right of players to perform their football-related activities
and to be eligible to participate in official matches. Non-registration or in this case inability of the
Respondent/Counter-Claimant to be fielded during the whole season would have effectively
stripped him of his fundamental right of a professional football player to have a reasonable
opportunity to compete with his fellow teammates in official matches, which rendered any
continuation of an employment impossible.
45. Conversely, clubs have the duty of putting their players in a position to perform and to be eligible
to play. Therefore, when concluding employment contracts, clubs must be cognizant of the
regulatory framework in which they operate and bear the responsibility for the application of rules
which may deprive players of fundamental rights, such as the “right to play”.
46. Accordingly, the Chamber concluded that the Respondent/Counter-Claimant had just cause to
terminate the employment contract on 18 June 2021, hence the claim of the Claimant/CounterRespondent shall be rejected.
iii. Assessment of the counterclaim
47. Successively, the DRC decided to focus on the counterclaim lodged by the Respondent/CounterClaimant, who specifically demanded to be recognized the sum of EUR 8,750 as outstanding
remuneration for the month of May 2021.
48. In this regard, the Chamber recalled that for the season 2020/2021, the Claimant/CounterRespondent undertook to pay the Respondent/Counter-Claimant a total remuneration of EUR
60,000.
49. In this context, the Chamber observed that the Claimant/Counter-Respondent produced copy of
all the payments realized in favour of the Respondent/Counter-Claimant during the season
2020/2021, and that it appears evident to the DRC that Claimant/Counter-Respondent fully
complied with its financial obligations, remitting the total amount of EUR 60,000.
50. Therefore, the Chamber assessed that the Respondent/Counter-Claimant received all the sums
due under the employment contract, hence the counterclaim shall be rejected.
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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, 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant/Counter-Respondent, Ankaraspor, is rejected.
2.
The claim of the Respondent/Counter-Claimant, Marcus Pedersen,is rejected.
3.
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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