Labour Disputes
Texto da decisão
REF FPSD-4703
Decision of the
Dispute Resolution Chamber
passed on 10 March 2022
regarding an employment-related dispute concerning the player Jasmin Scuk
BY:
Frans de Weger (Netherlands), Chairperson
Roy Vermeer (Netherlands), member
José Luis Andrade (Portugal), member
CLAIMANT:
Player Jasmin Scuk, Bosnia and Herzegovina
Represented by Nihat Güman
RESPONDENT:
Altay, Turkey
Represented by Ercan Sevdimbaş
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I.
Facts of the case
1.
On 14 August 2020, the Bosnian player Jasmin Scuk (hereinafter the Claimant or the player)
and the Turkish club Altay (hereinafter the Respondent or the club) concluded an employment
agreement (hereinafter the Employment Agreement) valid as of 14 August 2020 until
31 May 2022.
2.
In Clause 3 of the Employment Agreement, the Claimant and the Respondent (jointly referred to
as the Parties) agreed upon, inter alia, the following financial terms:
“GUARANTEE PAYMENT FOR 2020 – 2021 SEASON
GUARANTEE PAYMENT OF 190.000 EURO
100.000 – EURO THE OFFICIAL CONTRACT WILL BE PAID WHEN SIGNED
50.000 EURO – WILL BE PAID ON 30.11.2020
40.000 EURO – WILL BE PAID ON 05.01.2021
GUARANTEE PAYMENT FOR 2021 – 2022 SEASON
GUARANTEE PAYMENT OF 190.000 EURO
50.000 EURO – WILL BE PAID ON 25.09.2021
50.000 EURO – WILL BE PAID ON 25.12.2021
50.000 EURO – WILL BE PAID ON 28.02.2022
40.000 EURO – WILL BE PAID ON 25.03.2022”
3.
Moreover, the same Clause foresaw that the Claimant “shall be paid 13.000 EURO in the first
week of each month, for a total of 10 months, beginning from the date 01/08/2020 up to and
including the date 01/05/2021.”
4.
Nonetheless, in case the Respondent promotes to the Turkish Super League for the season
2021/2022, the payments for the said season should be as follows:
“GUARANTEE PAYMENT FOR THE SEASON 2021-2022 (SUPER LEAGUE) 300.000 EURO
75.000 EURO will be paid 25.09. 2021.
75.000 EURO will be paid 25.12.2021.
75.000 EURO will be paid 30.02.2022.
75.0 EURO will be paid 25 .03. 2022”
5.
Furthermore, also upon the promotion to the Turkish Super League for the season 2021/2022,
the monthly salaries should amount to “15.000 EURO in the first week of each month, for a
total of 10 months, beginning from the date 01/08/2021 up to and including the date
01/05/2022.”
6.
For the season 2021/2022, the Respondent promoted from the second-tier competition to the
first-tier competition, i.e. the Turkish Super League.
7.
On 15 December 2021, the Claimant put the Respondent in default for the payment of the
outstanding salaries in the total amount of EUR 135,000, corresponding to four outstanding
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salaries of August 2021 - November 2021 (EUR 15,000 x 4) and a guarantee payment of
EUR 75,000, providing it a 15 days’ deadline to remedy its default, however to no avail.
8.
On 31 December 2021, the Claimant sent the Respondent a termination notice (hereinafter
the Termination Notice).
9.
Therein, the Claimant requested the outstanding amounts totalling to EUR 225,000,
corresponding to five outstanding salaries of August 2021 - December 2021 (EUR 15,000 x 5)
and two guarantee payments of EUR 75,000 (EUR 75,000 x 2).
10. The Claimant informed the FIFA Administration that he was not able to sign a new employment
contract.
II. Proceedings before FIFA
11. On 1 January 2022, 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
12. In its claim, the Claimant requested the following amounts:
- EUR 225,000, corresponding to outstanding amounts and interest of 5% p.a. as of the
respective due dates
- EUR 225,000, compensation “plus 90.000.EUR mitigated compensation totally
315.000,00.EUR” and interest of 5% p.a. as of the date of termination, i.e. 31 December
2021.
13. The Claimant argued that it terminated the Employment Agreement with just cause, in
accordance with Art. 14bis of the Regulations.
14. As to the compensation, the Claimant argued that he should receive the residual value of the
Employment Agreement, i.e. five monthly salaries totalling to EUR 75,000 (EUR 15,000 x 5) and
two guarantee payments totalling to EUR 150,000 (EUR 75,000 x 2).
15. Finally, the Claimant requested six monthly salaries totalling to EUR 90,000 as an additional
compensation due to the “aggravated circumstances”.
b. Position of the Respondent
16. The Respondent rejected the claim of the Claimant.
17. In its reply, the Respondent argued that the amount of EUR 225,000 “is not the correct amount as
outstanding remuneration because all the receivables of the Player is paid by the Respondent Club.
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Also, on the date of the termination notice of which is 31.12.2021, the salary of the December 2021
was not due and requestable.”
18. Furthermore, as to the compensation, the Respondent alleged that the requested amount of
EUR 315,000 for “excessive amount”. In this respect, the Respondent argued that the Claimant
ignored that (i) the value of the new contract shall be deducted from the residual contract value
and that (ii) the overall compensation shall not exceed the rest value of the prematurely
terminated contract.
19. The Respondent was of the opinion that the Claimant “intentionally avoided to achieve a new
contract with a different club and to obtain revenues. For those reasons, the amount of the
compensation should be deducted.”
20. Finally, the Respondent added that “[i]t should be noted that some of the payments was in the
period of force majeure as defined by the FIFA because of the covid-19 virus. For those reasons, we
request from your Honorable Committee to make a reduction from the receivables of the Claimant
considering the relevant circulars that define a force majeure situation is occurred due to the covid19 pandemic results.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. 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 01 January 2022 and submitted for decision on .
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.
22. 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. b) of the Regulations
on the Status and Transfer of Players (March 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 Bosnian player and a Turkish club.
23. 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 (March 2022 edition), and considering that the
present claim was lodged on 1 January 2022, the August 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
24. 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
25. 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
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 the assessment of the
matter at hand.
i. Main legal discussion and considerations
26. The foregoing having been established, the Chamber moved to the substance of the matter, and
noted that this is a claim of a player against a club concerns a termination of an employment
agreement. Furthermore, the DRC took note of player’s allegations that he had just cause to
terminate the employment relationship due to the outstanding amounts.
27. In this context, 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 formal pre-requisites of art. 14bis of the Regulations
had in fact been fulfilled as alleged by the Claimant.
28. Referring to the wording of art. 14bis par. 1 of the Regulations, in accordance with which, if a
club unlawfully fails to pay a player at least two monthly salaries on their due dates, the player
will be deemed to have a just cause to terminate his contract, provided that he has put the
debtor club in default in writing and has granted a deadline of at least 15 days for the debtor
club to fully comply with its financial obligation(s).
29. In this respect, the Chamber noted that the Claimant claims not having received his
remuneration corresponding to four monthly salaries and an additional guarantee payment.
Furthermore, he has provided written evidence of having put the Respondent in default on
15 December 2021, i.e. at least 15 days before unilaterally terminating the contract on
31 December 2021.
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30. Moreover, the Chamber pointed to art. 13 par. 5 of the Procedural Rules and noted that the
Respondent bore the burden of proving that it indeed complied with the financial terms of the
contract concluded between the parties, which it failed to do so.
31. In view of the above, the Chamber concluded that the Claimant terminated the employment
relationship with just cause, in accordance with art. 14bis of the Regulations.
32. As to the Respondent’s argumentation regarding COVID-19, the Chamber highlighted that FIFA
issued a set of guidelines, the COVID-19 Guidelines, 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. Moreover, it was also outlined that on 11 June 2020, FIFA
has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides
clarifications on the most relevant questions in connection with the regulatory consequences of
the COVID-19 outbreak and identifies solutions for new regulatory matters.
33. Analysing the concept of a situation of force majeure, the Chamber also stressed that, based on
the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare
that the COVID-19 outbreak was a force majeure situation in any specific country or territory,
or that any specific employment or transfer agreement was impacted by the concept of force
majeure. In other words, in any given dispute, it is for a party invoking force majeure to establish
the existence of said event under the applicable law/rules as well as the consequences that
derive in connection thereto. The analysis of whether a situation of force majeure existed has
to be considered on a case-by-case basis, taking into account all the relevant circumstances.
34. Following these general observations, the Chamber concluded that the Respondent was not
able to demonstrate, through substantial evidence, that the situation faced was to be legally
considered a situation of force majeure.
35. Based on the foregoing, the Chamber concluded that the Respondent had not provided a valid
justification for any reduction in the matter at hand.
ii. Consequences
36. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
37. The Chamber observed that the outstanding remuneration at the time of termination, coupled
with the specific requests for relief of the player, are equivalent to five monthly salaries under
the contract, amounting to EUR 75,000.
38. Furthermore, the Chamber noted that also two guarantee payments amounting to EUR 150,000
remained outstanding at the time of termination.
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39. 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 contract at the moment of the termination, i.e. EUR 225,000.
40. 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%
p.a. on the outstanding amounts as follows:
- over the amount of EUR 15,000 as of 8 August 2021 until the date of the effective
payment;
- over the amount of EUR 15,000 as of 8 September 2021 until the date of the effective
payment;
- over the amount of EUR 75,000 as of 26 September 2021 until the date of the effective
payment;
- over the amount of EUR 15,000 as of 8 October 2021 until the date of the effective
payment;
- over the amount of EUR 15,000 as of 8 November 2021 until the date of the effective
payment;
- over the amount of EUR 15,000 as of 8 December 2021 until the date of the effective
payment;
- over the amount of EUR 75,000 as of 26 December 2021 until the date of the effective
payment;
41. Having stated the above, the Chamber turned to the calculation of the amount of compensation
payable to the player by the club 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.
42. 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. In this regard, the Chamber established that no such
compensation clause was included in the employment contract at the basis of the matter at
stake.
43. As a consequence, the members of the Chamber determined that the amount of 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.
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44. Bearing in mind the foregoing as well as the claim of the player, the Chamber proceeded with
the calculation of the monies payable to the player under the terms of the contract from the
date of its unilateral termination until its end date. Consequently, the Chamber concluded that
the amount of EUR 225,000 (i.e. the remaining five monthly salaries of EUR 15,000 and two
guarantee payments of EUR 75,000/each) serves as the basis for the determination of the
amount of compensation for breach of contract.
45. 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.
46. In this respect, the Chamber noted that the player remained unemployed since the unilateral
termination of the contract.
47. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case the
player did not sign any new contract following the termination of his previous contract, as a
general rule, the compensation shall be equal to the residual value of the contract that was
prematurely terminated.
48. In this respect, the Chamber decided to award the player compensation for breach of contract
in the amount of EUR 225,000 as the residual value of the contract.
49. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest on said compensation at
the rate of 5% p.a. as of 31 December 2021 until the date of effective payment.
iii. Compliance with monetary decisions
50. 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.
51. 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.
52. 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
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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.
53. 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.
54. 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
55. 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.
56. 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.
57. 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, Jasmin Scuk, is partially accepted.
2.
The Respondent, Altay, has to pay to the Claimant, the following amount(s):
-
EUR 15,000 as outstanding remuneration plus 5% interest p.a. as of 8 August 2021 until the
date of the effective payment;
EUR 15,000 as outstanding remuneration plus 5% interest p.a. as of 8 September 2021 until
the date of the effective payment;
EUR 75,000 as outstanding remuneration plus 5% interest p.a. as of 26 September 2021 until
the date of the effective payment;
EUR 15,000 as outstanding remuneration plus 5% interest p.a. as of 8 October 2021 until the
date of the effective payment;
EUR 15,000 as outstanding remuneration plus 5% interest p.a. as of 8 November 2021 until the
date of the effective payment;
EUR 15,000 as outstanding remuneration plus 5% interest p.a. as of 8 December 2021 until the
date of the effective payment;
EUR 75,000 as outstanding remuneration plus 5% interest p.a. as of 26 December 2021 until
the date of the effective payment;
EUR 225,000 as compensation for breach of contract without just cause plus 5% interest p.a.
as of 1 January 2022 until the date of the 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.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021 edition),
if full payment (including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1.
2.
6.
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.
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.
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.
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7.
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).
CONTACT INFORMATION
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