Labour Disputes
Texto da decisão
REF FPSD-2687
Decision of the
Dispute Resolution Chamber
passed on 11 August 2021
regarding an employment-related dispute concerning the player
Ibrahim Sehic
BY:
Stijn BOEYKENS (Belgium)
CLAIMANT:
Ibrahim Sehic, Bosnia and Herzegovina
Represented by Mr Nihat Güman, Mr Mumin Adigüzel &
MrMesut Metin
RESPONDENT:
Buyuksehir Belediye Erzurumspor, Turkey
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REF FPSD-2687
I. Facts of the case
1.
On 20 July 2018, the Bosnian player, Ibrahim Sehic (hereinafter: the Claimant or the
player), and the Turkish club, Buyuksehir Belediye Erzurumspor (hereinafter: the
Respondent or the club) signed an employment contract.
2.
On 16 March 2020, the parties concluded an amendment agreement with the view to
remunerate the player with a promotion bonus.
3.
On 4 January 2021, the parties concluded a “reconciliation protocol” (hereinafter:
protocol) with respect to the non-compliance by the club of its financial obligations
under the employment contract and the amendment agreement.
4.
According to the protocol, the club committed to pay the player the following
amounts:
a.
EUR 95,000 resulting from the employment contract and TRL 300,000 resulting
from the amendment agreement, payable as follows:
b. o EUR 30,000 and TRY 100,000 on or before 31 January 2021,
c. o EUR 30,000 and TRY 100,000 on or before 31 March 2021,
d. o EUR 35,000 and TRY 100,000 on or before 31 May 2021.
5.
On 3 May 2021, the player sent the club a default notice with respect to the nonpayment of the second instalment, i.e. the amounts of EUR 30,000 and TRY 100,000
due on or before 31 March 2021, requesting the club to comply with its obligations
within the next 10 days.
6.
On 1 June 2021, the player lodged a claim before FIFA regarding the non-fulfilment by
the club of the financial terms of the protocol. The player explained that it received
the first instalment, however the second and third instalments remained outstanding.
He accordingly requested that the club be ordered to pay him EUR 65,000 plus TRY
200,000 plus 5% interest p.a. on those amounts as of the respective due dates until
the date of payment.
7.
The club failed to submit its response in spite of having been granted a deadline
extension as requested.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
8.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
Judge) analysed whether he was competent to deal with the case at hand. In this
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respect, he took note that the present matter was presented to FIFA on 1 June 2021
and submitted for decision on 11 August 2021. Taking into account 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.
9.
Subsequently, the DRC Judge referred to art. 2 par. 1 of the Procedural Rules and
observed that in accordance with art. 24 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (February 2021 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.
10. Subsequently, the DRC 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 (February
2021 edition), and considering that the present claim was lodged on 1 June 2021, the
same edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
11. The DRC Judge 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 Judge
stressed the wording of art. 12 par. 4 and par. 5 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
12. The competence and the applicable regulations having been established, the DRC
Judge entered into the merits of the dispute. In this respect, he started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, he 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.
13. The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that the parties dispute the payment of certain
financial obligations by the Respondent as per the protocol.
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14. In this context, the DRC Judge acknowledged that his 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.
15. The DRC Judge 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 protocol concluded
between the parties.
16. Nonetheless, the DRC Judge noted that the Respondent has not provided any
evidence or justification regarding the non-payment of the amounts claimed as
outstanding by the Claimant.
17. In view of the foregoing 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, as well as the contents of art. 9 par. 3 and 4 of the Procedural Rules, the
DRC Judge concluded that the Respondent is held liable to pay the Claimant the
outstanding amounts deriving from the protocol concluded between the parties,
namely EUR 65,000 and TRY 200,000.
18. Lastly, taking into consideration the player’s request as well as the constant practice
of the DRC in this regard, the DRC Judge decided to award the player interest on said
amounts at the rate of 5% p.a. as of their due dates until the date of effective payment.
19. Finally, taking into account the applicable Regulations, the DRC Judge referred to art.
24bis 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.
20. In this regard, the DRC 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.
21. Therefore, bearing in mind the above, the DRC 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.
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22. 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.
23. The DRC 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
24. The DRC Judge referred to art. 18 par. 2 of the Procedural Rules, according to which
“international employment-related disputes between a club and a player are free of
charge”. Accordingly, he decided that no procedural costs were to be imposed on the
parties. Likewise and for the sake of completeness, the DRC Judge recalled the
contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural
compensation shall be awarded in these proceedings.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ibrahim Sehic, is accepted.
2.
The Respondent, Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, the
following amount:
-
EUR 30,000 plus 5% interest per annum as from 1 April 2021 until the date of
effective payment;
TRY 100,000 plus 5% interest per annum as from 1 April 2021 until the date of
effective payment;
EUR 35,000 plus 5% interest per annum as from 1 June 2021 until the date of
effective payment;
TRY 100,000 plus 5% interest per annum as from 1 June 2021 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. 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.
5. 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.
6. 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 20 of the Procedural Rules).
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