Labour Disputes
Texto da decisão
REF FPSD-2907
Decision of the
Dispute Resolution Chamber
passed on 27 October 2021
regarding an employment-related dispute concerning the player Elbasan
Rashani
BY:
Jon Newman (USA)
CLAIMANT:
Elbasan Rashani, Norway
Represented by Mr Talat Emre Koçak
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
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REF FPSD-2907
I.
Facts of the case
1.
On 25 January 2021, the Norwegian player, Elbasan Rashani (hereinafter: the Claimant), and
the Turkish club, Buyuksehir Belediye Erzurumspor (hereinafter: the Respondent) signed an
employment contract, valid as from 25 January 2021 until 31 May 2022 until.
2.
In accordance with art.3 of the employment contract, the Respondent undertook to pay to
the Claimant inter alia the following:
- EUR 40,000 for the 2020/2021 season;
- EUR 80,000 for the 2021/2022 season.
3.
On the same date, the parties signed an amendment to the contract (the amended contract)
and agreed as follows:
“3.1: As of conclusion of the present Amendment Agreement, the foreseen payable total
remuneration to the Player for the 2020/2021 Season as NET 40.000.-EUR resulting from
execution of the Employment Contract dated 25.1.2021 is increased to NET 214.000.-EUR
and it is novated as follows:
-
EUR 54,000 payable on 31 January 2021;
EUR 40,000 payable on 28 February 2021;
EUR 40,000 payable on 30 March 2021;
EUR 40,000 payable on 30 April 2021;
EUR 40,000 payable on 30 May 2021.
3.3
As of conclusion of the present Amendment Agreement, the foreseen payable total
remuneration of the Player for the 2021/2022 Football Season as NET 80.000.-EUR resulting
from the Employment Contract dated 25.1.2021 is increased to NET 428.000.-EUR (…)”
4.
By correspondence dated 12 April 2021, the Claimant put the Respondent in default of
payment of the amount of EUR 80,000 setting a time limit of 15 days in order to remedy the
default, however to no avail.
II. Proceedings before FIFA
5.
On 25 June 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
6.
According to the Claimant, the Respondent has failed to pay his salaries for the months of
April and May 2021.
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7.
The requests for relief of the Claimant, were that he is awarded:
(a) EUR 80,000 as outstanding salaries for April and May 2021 (EUR 40,000 per month),
plus 5% interest p.a. as of the due dates until the effective date of payment as
follows:
-
on the amount of EUR 40,000 as of 1 May 2021;
on the amount of EUR 40,000 as of 31 May 2021;
(b) Judicial costs
b. Position of the Respondent
8.
Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as the Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 25 June 2021
and submitted for decision on 27 October 2021. Taking into account the wording of art. 34
of the October 2021 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.
10. Subsequently, the Single Judge 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. b) of the Regulations on
the Status and Transfer of Players (August 2021 edition), as well as art. 24 par. 1 of the
Procedural Rules, the Single Judge 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.
11. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (August 2021 edition), and
considering that the present claim was lodged on 25 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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b. Burden of proof
12. The Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
13. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
14. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Claimant and the Respondent concluded an
employment contract valid from 25 January 2021 until 31 May 2022.
15. The Single Judge observed that the Claimant lodged a claim in front of FIFA against the
Respondent, asserting that the Respondent had failed to pay his salaries for the months of
April and May 2021.
16. Subsequently, the Single Judge noted that – after having been provided with the claim of the
Claimant - the Respondent failed to present its response to the claim of the Claimant, in spite
of having been invited to do so. By not presenting its position to the claim, the Single Judge
was of the opinion that the Respondent renounced its right of defence and, thus, accepted
the allegations of the Claimant.
17. Taking into account the documentation presented by the Claimant, the Single Judge
concluded that the Claimant had substantiated its claim pertaining to his outstanding
remuneration with sufficient documentary evidence.
ii. Consequences
18. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent and
decided, that the Respondent must fulfil its obligations in accordance with the general legal
principle of “pacta sunt servanda”.
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19. Consequently, the Single Judge decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration, in the amount of EUR 80,000, corresponding to:
-
EUR 40,000 payable on 30 April 2021; and
EUR 40,000 payable on 30 May 2021.
20. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the Single Judge decided to award the Claimant interest at
the rate of 5% p.a. on the above amounts as from the respective due dates until the date of
effective payment.
21. As regards to the claimed judicial cost, the Single Judge referred to art. 25 par. 8 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 Single Judge decided to reject the
Claimant’s request relating to judicial costs.
iii. Compliance with monetary decisions
22. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
par. 1 and 2 of the Regulations, which stipulate that, with his 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.
23. In this regard, the Single Judge 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.
24. Therefore, bearing in mind the above, the Single Judge 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. 24bis par. 2, 4, and 7 of the Regulations.
25. 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.
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26. The Single Judge 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. 24bis par.
8 of the Regulations.
d. Costs
27. The Single Judge 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 Single Judge decided that no procedural costs were
to be imposed on the parties.
28. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
29. Lastly, the Single Judge concluded his 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, Elbasan Rashani, is partially accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, EUR 80,000
as outstanding remuneration plus 5% interest p.a. as of the due dates until the effective date
of payment as follows:
-
▪
on the amount of EUR 40,000 as of 1 May 2021;
on the amount of EUR 40,000 as of 31 May 2021.
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.
Pursuant to art. 24bis 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 the ban shall
be of 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.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-2907
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).
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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