Labour Disputes
Texto da decisão
REF FPSD-3354
Decision of the
Dispute Resolution Chamber
passed on 13 January 2022
regarding an employment-related dispute concerning the player Artur
Sobiech
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Sihon Gauci (Malta), member
Laurel Vaurasi (Fiji), member
CLAIMANT:
Artur Sobiech, Poland
Represented by Maciej Bałaziński
RESPONDENT:
Fatih Karagumruk AS, Turkey
Represented by Sami Dinc
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REF FPSD-3354
I.
Facts of the case
1.
On 15 January 2020, the Claimant and the Respondent concluded an employment contract
(hereinafter: “the contract”) valid from 15 January 2020 until the end of the 2020/2021
football season or any later date on which an official football match is played in the respective
football season. According to the information available on FIFA TMS, the 2020/2021 season
ends on 30 June 2021.
2.
Pursuant to clause 6.1. of the contract, the Claimant was entitled to the following
remuneration:
“For 2019/2020 football season:
The total amount of EUR 140,000, to be paid to the player by the club in 6 equal instalments
(6 x EUR 23,333.33) between the period January 2020 - June 2020. The monthly salaries are
to be paid the last day of the relevant months.
For 2020/2021 football season:
In case the club plays in TFF 1st League in 2020/2021 football season:
The total amount of EUR 290,000, to be paid to the player by the club in 12 equal instalments
(12 x EUR 24,166.66) between the period August 2020 - July 2021. The monthly salaries are
to be paid on the last day of the relevant months.”
3.
Pursuant to clause 6.2 of the contract, the Respondent undertook to pay to the Claimant
living costs in the amount of EUR 1,000 per month between the respective periods of January
to May 2020 and August 2020 to May 2021.
4.
According to art. 6.3 of the contract, in the event that the Respondent get promoted to the
TFF Super League at the end of the 2019/2020 football season, the Claimant shall be entitled
to a bonus, based on the following:
(a)
(b)
(c)
5.
EUR 1,176.47 for a match in which the Claimant played in the first 11;
EUR 882.35 for a match in which the Claimant was fielded later;
EUR 588.23 for a match in which the Claimant was selected to the squad but was
not fielded.
On 14 May 2020, due to the COVID-19 pandemic and the suspension of football activities in
Turkey, the Respondent sent a notification to the Claimant proposing a 30% remuneration
reduction for the 2019/2020 football season. The notification, inter alia, stated the following:
“Therewith, we would like to state that if our Club will promote to the TFF Super League at
the end of the 2019/2020 football season, our Club may find an opportunity to compensate
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its financial loss in some measures, the said discount on the Player's remunerations shall be
invalid and the agreed discounted amount shall be paid to the Player following to
abovementioned success occurs. In case you accept the abovementioned proposal, our Club
doesn't claim any other requests before the judicial bodies and even if the football authorities
determine an opinion for making bigger discounts from player's remunerations, the
agreement which will be reached by the Parties within the abovementioned proposal will be
applied.
However, in case of the aforementioned proposal is not accepted of left unanswered in 5
(five) days at the latest following the receipt of this notification, our Club will make unilaterally
reductions and reconstructing on the remunerations of 2019/2020 football season under any
name whatsoever which stated in the Contract in accordance with the said guideline of FIFA,
said recommendation decisions of TFF and the legislation in force.”
6.
On 15 May 2020, the Claimant informed the Respondent, that he is willing to negotiate the
terms of a possible reduction of his remuneration on the condition that the Respondent fulfil
its obligations, which arose prior to the pandemic, however the parties failed to reach an
agreement.
7.
According to the Claimant, the Respondent unilaterally applied a reduction of EUR 20,000 to
his remuneration due for May and June 2020, thus amounting to 43% of such remuneration,
which was applied despite the fact that the Respondent was promoted to the TFF Super
League.
8.
The Claimant furthermore indicated he duly provided his services to the Respondent
throughout July 2020 and was never paid for this month.
9.
On 5 October 2020, the Claimant sent a default notice to the Respondent requesting
payment of the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
EUR 8,000 - outstanding monthly salary due for May 2020
EUR 8,000 - outstanding monthly salary due for June 2020
EUR 28,333 - outstanding monthly salary due for August 2020
EUR 1,000 - living costs due for August 2020
EUR 1,000 - living costs due for September 2020
EUR 14,117.64 for 12 matches started by the player in the first 11
EUR 1,764.70 for 2 matches with the Player attending and being fielded in the
course of the game
EUR 3,529.41 for 3 play-off matches started by the player in the first 11
10. However, the Respondent only paid to the Claimant the amount of EUR 10,550.76 as the
bonus for promotion to the TFF Super League.
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11. On 15 October 2020, the Respondent replied to the Claimant’s default notice by objecting
to the amounts as claimed and further informing the Claimant that it would pay the “real
overdue payables to the player as soon as possible.”
12. On 16 October 2020, the Claimant replied to the Respondent and reiterated his request as
detailed in his default notice sent on 5 October 2020.
13. On 3 August 2021, the Claimant sent a second notice of default to the Respondent by
granting it an additional deadline of 10 days to comply with its financial obligations, however
to no avail.
II. Proceedings before FIFA
14. On 18 August 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
15. According to the Claimant, the Respondent failed to comply with its contractual financial
obligations and that the reduction of the Claimant's remuneration unilaterally imposed by
the Respondent is not reasonable nor proportionate.
16. The requests for relief of the Claimant, were payment by the Respondent of his outstanding
remuneration in the amount of EUR 117,860.98, plus 5% interest p.a. from the respective
due dates until date of effective payment corresponding to:
Salaries
(a)
(b)
(c)
(d)
(e)
EUR 8,000 outstanding monthly salary (balance) due for May 2020;
EUR 8,000 outstanding monthly salary (balance) due for June 2020;
EUR 28,333.33 outstanding monthly salary due for May 2021;
EUR 28,333.33 outstanding monthly salary due for June 2021:
EUR 28,333.33 outstanding monthly salary due for July 2021.
Living cost
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
EUR 1,000 living costs due for October 2020;
EUR 1,000 living costs due for November 2020;
EUR 1,000 living costs due for December 2020;
EUR 1,000 living costs due for January 2021;
EUR 1,000 living costs due for February 2021;
EUR 1,000 living costs due for March 2021;
EUR 1,000 living costs due for April 2021;
EUR 1,000 living costs due for May 2021.
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REF FPSD-3354
Bonus
(a)
EUR 8,860.99 as outstanding bonus
17. Additionally, the Claimant requested that a fine and a ban for registering any new players,
either nationally or internationally, for 2 consecutive registration periods, or any other
sanction under Art. 12bis sec. 4 of FIFA RSTP that FIFA DRC deems appropriate be imposed
on the Respondent.
b. Position of the Respondent
18. According to the Respondent, the Claimant’s claim to the “alleged overdue salaries and living
costs in the amount of EUR 117,860.98 stands false.”
19. Moreover, the Respondent mentioned that it made payments in Turkish Lira due to the
exchange difficulties which occurred in Turkey. In this regard the Respondent stipulated the
following:
“It is also obvious that the Claimant did not put any caution (obsolete) to the said payments
of Turkish Lira currency which clearly shows that the Claimant accepted the Respondent's
current situation and accepted the payments without any questions with receptively. That's
why, with considering the all above-mentioned facts, the Respondent paid 414.754,67-Euro
(Four Hundred Fourteen Thousand Seven Hundred and Fifty Four Euro Sixty Seven Cent) to
the Claimant in regarding to the Claimant's contractual receivables and the claims of the
Claimant stands false.”
20. The Respondent referred to the suspension of the Turkish league due to the COVID-19
pandemic and mentioned that the Turkish Football Federation (TFF) declared its decision to
suspend the leagues until further notice, which had a serious financial impact on the
Respondent as the Respondent “over a 4-month period, received zero broadcast revenues,
sport betting revenues etc.”
21. Accordingly, on 14 May 2020, the Respondent sent an offer to the Claimant regarding a
salary reduction of 30%, by allegedly following the FIFA regulations; however, the Claimant
in its reply on 15 May 2020 did not agree to the offer of the Respondent.
22. On 27 May 2020, the Respondent sent another proposal to the Claimant, but according to
the Respondent “the negotiations had broken down once again because of the Claimants
clear none intension to compromise and naturally said special provision also declined.”
23. The Respondent indicated that “it used it's right given by the FIFA itself with the COVID-19
Football Regulatory Issues dated 11 June 2020 and made an unilateral reduction from the
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Player's receivables in the amount of 16.000,00-Euro which corresponds to the suspended
period only.”
24. In this context, the Respondent confirmed that it reduced EUR 4,000 from the Claimant's
monthly salary for the suspended period (March-April-May-June 2020).
25. The Respondent referred to the Claimant’s statement of claim in which he mentioned "the
reduction will become invalid if the Club will promote to TFF Super League", according to the
Respondent this would only be valid if the parties had found a mutual agreement regarding
to the COVID-19 reduction.
26. Moreover, in its reply the Respondent stipulated the following:
“In the light of the abovementioned facts, the Respondent expects from your honorable
chamber to decide a discount from the Claimant's salaries for pandemic period which
corresponds to the months of March, April and May in the amount of 16.000,00-Euro
(Sixteen Thousand Euro) (%30 as asked to the Player from the Club for March, April, May and
June) over the true remaining amount of 65.245,33-Euro (Sixty Five Thousand Two Hundred
and Forty Five Euro Thirty Three Cent) after deducting the payments made by the Respondent
to the Claimant. Otherwise, the Respondent will be devoid of using it's right entitled by FIFA
itself with the COVID-19 Regulatory Issues dated 11 June 2020.”
27. Consequently, the Respondent indicated that taking the COVID-19 reduction of EUR 16,000
into account, only the amount of EUR 49,245.33 is due to the Claimant
28. The requests for relief of the Respondent, were that the FIFA DRC:
- dismiss the claim of the Claimant; and
- make a decision that the judicial costs and the legal fees that the Claimant are paid by the
Claimant
c. Additional Comments Claimant
29. The payment documents as submitted by the Respondent, was provided to the Claimant for
comment and the Claimant in its response, inter alia, stipulated the following:
“that payments made by the Respondent throughout the 2019/2020 and the 2020/2021
football seasons in the TL currency to the TL bank account of the Claimant constitute payment
of extra match bonuses offered by the Respondent for the performance of its team in a given
match during the season. Accordingly, it clearly shows that each payment in Turkish liras to
the Claimant's TL bank account was made a few days after a match won by the Respondent
(with the exception of the last match in which the Respondent tied with Galatasaray A.S.) in
which the Claimant participated.
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the Claimant's participation in these matches is further confirmed by the official extracts from
the website of the Turkish Football Federation related to each match. (note: copies of extracts
on file)
the payments made in Turkish liras occurred in the 2020/2021 football season, in the period
of November 2020 -April 2021. Simultaneously it shall be noted that in the exact same period
the Respondent executed regular payments of the full amount of the basic remuneration of
the Claimant (i.e. EUR 28.333,33) to his EUR bank account.
a close analysis of the bank statements submitted by the Respondent allow to conclude that
payments made by the Respondent to the Claimant in the Tl currency to the TL bank account
in the total amount of Tl 171.930,00 do not relate to contractual receivables of the Claimant
but constitute payment of extra match bonuses offered by the Respondent to its players.”
30. In conclusion, the Claimant requested that the payments be considered as extra match
bonuses offered by the Respondent to its players for the performance of the team and that
the Respondent’s explanation be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
31. 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 18 August 2021 and submitted for decision
on 13 January 2022. 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.
32. 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 (August 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 Polish player and a
Turkish club.
33. 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 Player (August 2021 edition) and
considering that the present claim was lodged on 18 August 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
34. 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
35. 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
36. 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 consequences of the alleged
unilateral variation to the contract by the Respondent.
37. The Chamber took note that the Claimant rejected the unilateral variation of salaries made
by the Respondent. On the other hand, the Respondent - on its account - argued that the
Claimant’s remuneration was validly reduced by 30% within the context of the outbreak of
the COVID-19 pandemic and the suspension of the Turkish League, which had a serious
financial impact on the Respondent. Moreover, the DRC observed that the Respondent
maintained that the salary reduction was performed in accordance with FIFA´s guidelines.
38. In this context, the DRC acknowledged that its task was to determine whether the
Respondent could validly reduce the Claimant’s salary and invoke the FIFA COVID-19
Guidelines.
39. Having said that, the DRC wished to refer to the fact that, in light of the worldwide COVID19 outbreak, 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, on 11 June 2020, FIFA has issued
an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about
the most relevant questions in connection with the regulatory consequences of the COVID19 outbreak and identifies solutions for new regulatory matters.
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40. With this framework in mind, the Chamber noted 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 as 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.
41. According to the FIFA COVID-19 Guidelines, unilateral decisions to vary the terms of an
agreement are allowed if they are made in line with national law or permissible within the
CBA structures. Thus, if the parties involved cannot reach an amicable settlement, or the issue
is not addressed in national law and CBA’s with a players’ union are not an option, a variation
to the contract can only be allowed if it is made in good faith, are reasonable and
proportionate.
42. The DRC noted that in the matter at hand, it appears that based on the documentation on
file, the Respondent attempted to find a solution with the Claimant regarding the proposed
salary reduction by sending to the Claimant a proposal, proposing a 30% remuneration
reduction for the 2019/2020 football season, however the DRC remarked that it turned out
that the Claimant and Respondent failed to reach an agreement in this regard. Furthermore,
the DRC observed that in accordance with the said proposal, the Respondent indicated that
the proposed reduction would become invalid if the Respondent is promoted to the TFF Super
league, which indeed occurred according to the information on file.
43. The DRC remarked that the Respondent had not sufficiently demonstrated that the variation
to the Claimant’s contract was made in accordance with the FIFA COVID-19 Guidelines,
neither could it validly justify the reduction of the Claimant´s salary. The DRC concluded by
mentioning that the Claimant’s salary reduction seems to be unilateral in nature and therefore
it cannot be accepted. Accordingly, the Respondent shall remunerate the Claimant as agreed
to in the contract.
44. Finally, the DRC observed that the Respondent referred to payments that it had allegedly
made in Turkish Lira to the Claimant due to the exchange difficulties, the receipt of which is
not contested by the Claimant, who however pointed out that such payments were related
to match bonuses, a common practice for football clubs in Turkey to offer their players extra
match bonuses for performance in the team.
45. Based on the foregoing and taken into account that the Respondent did not demonstrate
that the payments made in TRY indeed belonged to salary payments the Claimant was
entitled to, the DRC concluded that these payments were related to match bonuses and shall
therefore not be considered as salary payments.
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ii. Consequences
46. Having stated the above, the members of the Chamber decided that the Respondent must
fulfil its obligations in accordance with the general legal principle of “pacta sunt servanda”.
47. Consequently, the DRC decided that the Respondent is liable to pay to the Claimant his
outstanding remuneration, in the total amount of of EUR 108,999.99, plus 5% interest p.a.
from the respective due dates until date of effective payment, corresponding to the following:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
EUR 8,000 - monthly salary (balance) due for May 2020
EUR 8,000 - monthly salary (balance) due for June 2020
EUR 1,000 living costs due for October 2020
EUR 1,000 living costs due for November 2020
EUR 1,000 living costs due for December 2020
EUR 1,000 living costs due for January 2021
EUR 1,000 living costs due for February 2021
EUR 1,000 living costs due for March 2021
EUR 1,000 living costs due for April 2021
EUR 1,000 living costs due for May 2021
EUR 28,333.33 - monthly salary due for May 2021
EUR 28,333.33 - monthly salary due for June 2021
EUR 28,333.33- monthly salary due for July 2021.
48. Additionally, the DRC decided that the Respondent should pay to the Claimant the bonus in
the amount of EUR 8,860.99, in accordance with art. 6.3 of the contract. In this context, the
DRC noted that the Claimant’s request for the said bonus was not contested by the
Respondent and moreover, based on the documentation on file, it seems that the Respondent
already paid a portion in relation to said bonus.
49. Furthermore, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the Chamber decided to award 5% interest p.a. on the above amounts
as from the respective due dates until the date of effective payment.
iii. Compliance with monetary decisions
50. Finally, taking into account the applicable Regulations, the Chamber 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.
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
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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 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.
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. 24bis 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, Artur Sobiech, is accepted.
2.
The Respondent, Fatih Karagumruk AS, has to pay to the Claimant, the following amount (s):
a) EUR 100,999.99 as outstanding remuneration plus 5% interest p.a. as from the
respective due dates until the date of effective payment as follows:
- on the amount of EUR 8,000 as from 1 June 2020
- on the amount of EUR 8,000 as from 1 July 2020
- on the amount of EUR 28,333.33 as from 1 June 2021
- on the amount of EUR 28,333.33 as from 1 July 2021
- on the amount of EUR 28,333.33 as from 1 August 2021
(b) EUR 8,000 as outstanding living cost plus 5% interest p.a. as from the respective due
dates until date of effective payment, as follows:
- on the amount of EUR 1,000 as from 1 November 2020
- on the amount of EUR 1,000 as from 1 December 2020
- on the amount of EUR 1,000 as from 1 January 2021
- on the amount of EUR 1,000 as from 1 February 2021
- on the amount of EUR 1,000 as from 1 March 2021
- on the amount of EUR 1,000 as from 1 April 2021
- on the amount of EUR 1,000 as from 1 May 2021
- on the amount of EUR 1,000 as from 1 June 2021
(a) EUR 8,860.99, as outstanding bonus plus 5% interest p.a. as from 29 September 2020
until 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.
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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 17 of the Procedural Rules).
CONTACT INFORMATION
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