Labour Disputes
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 12 February 2020,
in the following composition:
Om ar Ongaro (Italy ), Deputy Chairman
Johan v an Gaalen (S outh Africa), member
Jos é Luis Andrade (Portugal), member
on the claim presented by the player,
S orin Bogdan S tancu, Romania
represented by Mr Riza Köklü
as Claimant
against the club,
Burs as por Kulübü Derneği , Turkey
represented by Mr Taner Unlu
as Respondent
regarding an employment-related dispute between the parties
I.
Facts of the cas e
1.
On 19 January 2017, the Romanian player, Sorin Stancu (hereinafter: the player or
the Claimant) and the Turkish club, Bursaspor Kulübü Dernegi (hereinafter: the club
or the Respondent) (hereinafter jointly referred to as the parties), signed an
employment contract (hereinafter: the contract) valid as from the date of signature
until 31 May 2019.
2.
In this respect, the contract provided the following financial conditions for the 20182019 season :
3.
Moreover, the contract provided the following under its article 3.2) of its “special
provisions” :
4.
On 23 June 2018, the Claimant put the Respondent in default urging it to pay EUR
535,000 in a deadline of 30 days in accordance with article 3.2) of the contract.
5.
On 22 July 2018, the parties signed a settlement agreement (hereinafter: the
settlement agreement) by means of which they agreed upon a payment schedule to
be followed by the Respondent which provided, inter alia, the following payment
scheme:
Player Sorin Bogdan Stancu, Romania / Club Bursaspor Kulübü Derneği, Turkey
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6.
In addition, clause 4 of the settlement agreement read as follows:
7.
On 5 November 2018, the Claimant put the Respondent in default of payment
requesting it to pay the instalment amounting to EUR 250,000, due on 31 July 2018,
and set a deadline on 5 December 2018, in accordance with article 3.2) of the
contract.
8.
On 6 December 2018, the Claimant terminated the contract deeming to have just
cause, due to the failed payment of several instalments in accordance with the
contract as well as the settlement agreement.
Player Sorin Bogdan Stancu, Romania / Club Bursaspor Kulübü Derneği, Turkey
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9.
On 22 and 25 February 2019, the Claimant lodged a claim against the Respondent
before the dispute resolution body among the Turkish Football Federation
requesting outstanding salaries arisen until the termination date and reserving his
rights to claim compensation.
10. On 11 April 2019, the “Dispute Resolution Board” rendered his decision and, after
said decision was appealed, on 19 July 2019 the “Arbitration Board” of the Turkish
Football Federation rendered his decision.
11. On 25 September 2019, the Claimant lodged a claim against the Respondent in front
of FIFA and requested the following:
a.
To confirm that the unilateral termination exercised by the Claimant is with just
cause and in line with the jurisprudence of FIFA and CAS;
b. EUR 410,000 as compensation for breach of contract, calculated as follows:
- EUR 215,000 as “mitigated compensation”, plus 5 % interest p.a. as from 6
December 2018;
- EUR 195,000 as “additional compensation”, plus 5 % p.a. as from 6 December
2018.
c.
To establish that the costs of the present arbitration procedure shall be borne by
the Respondent.
12. In his claim, The Claimant explained that due to the non-payment of salaries, he put
the Respondent in default on 23 June 2018 urging it to pay EUR 535,000 in a deadline
of 30 days in accordance with article 3.2) of the contract.
13. Furthermore, the Claimant sustained that clause 4 of the settlement agreement
subjected the validity of his default notice dated 23 June 2018 to the respect in full
of the settlement by the Respondent, i.e. the default notice would have lost his
effects if the Respondent would have paid the amount in full to the Claimant.
14. Moreover, the Claimant explained that the Respondent failed to fulfil his payment
obligations within the frame of the settlement despite several default notices sent
to it in this respect.
15. Consequently, the Claimant decided to put the Respondent one more time in default
of payment on 5 November 2018, requested it to pay the instalment amounting to
EUR 250,000 due on 31 July 2018 and set a deadline on 5 December 2018, in
accordance with article 3.2) of the contract, however to no avail, the consequence
thereof being the termination dated 6 December 2018.
Player Sorin Bogdan Stancu, Romania / Club Bursaspor Kulübü Derneği, Turkey
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16. With the above in mind, the Claimant referred to the claim lodged against the
Respondent before the deciding body among the Turkish Football Federation on 22
and 25 February 2019 and sustained that said claim was limited only to outstanding
salaries arisen until termination of the contract.
17. In this respect, the Claimant sustained that said body “is also competent to hear
employment-related disputes between a club and a player of an international
dimension and may decide on the justness of the termination and / or termination
compensation ONLY IF the termination procedure is exercised within the procedures
stipulated in the relevant articles of the TFF Regulations (…)”. As such, the Claimant
deemed that, as to the termination, having acted “in accordance with FIFA
Regulations Article 14bis, (Followed the FIFA way but not the TFF way) [the player]
only claimed the outstanding salaries that fell due up until termination before
Turkish Football Federation Dispute Resolution Chamber (…) just because complying
with Article 14bis, the Player’s only chance to bring his case regarding the
termination and termination compensation is before FIFA bodies”.
18. In reply to the claim, the Respondent contested FIFA’s competence do adjudicate the
present as to the substance.
19. In this respect, the Respondent sustained that, by acting such as the Claimant did, he
could not resort to FIFA for the collection of the compensation for breach of contract
as it would result in “enabling the Claimant’s forum shopping by aiming to get the
most favourable judgment”.
20. In continuation, the Respondent referred mainly to the jurisprudence of the FIFA
DRC sustaining that “the adjudication on the overdue payables are strongly
connected to the possible use of the right to terminate the contract with just cause
as well as its potential consequences in the form of compensation since it derives
from the existence of outstanding salaries”.
21. Consequently, the Respondent held that the claim of the Claimant should be
considered as inadmissible considering the aforementioned proceedings in front of
the Turkish Football Federation.
22. In addition, and without prejudice to its objections on FIFA’s competence to
adjudicate the present as to the substance, the Respondent held that the additional
compensation requested by the Claimant could not be awarded considering that the
overall compensation would exceed the rest value of the prematurely terminated
contract. In addition, the Respondent deemed that the mitigated compensation, as
requested by the Claimant, should suffice to compensate him. As a consequence, the
Respondent rejected the Claimant’s other requests in full.
Player Sorin Bogdan Stancu, Romania / Club Bursaspor Kulübü Derneği, Turkey
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23. Finally, the Claimant explained that he signed an employment contract with the
Turkish club Genclerbirligi SK on 22 January 2019 entitling him for the remaining
part of the 2018-2019 season to EUR 175,000.
II. Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 25 September
2019. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2018; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination with
art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2020),
the Dispute Resolution Chamber would, in principle, be competent to deal with the
matter at stake, which concerns an employment-related dispute with an
international dimension between a Romanian player and a Turkish club.
3.
However, the Chamber noted that the Claimant first lodged a claim before the
Turkish Football Federation (hereinafter: Turkish FA) on 22 and 25 February 2019, by
means of which he requested to be awarded of outstanding salaries arisen until the
termination date.
4.
In this regard, the Chamber took note that, on 11 April and on 19 July 2019, the
bodies of the Turkish FA adopted two decisions and went through all the arguments
and evidence provided by both parties.
5.
On account of the above, the members of the DRC established that they had to first
analyse the competence of the DRC, considering the existence of decision(s) issued
by the Turkish FA regarding the contractual documents on the basis of the present
dispute.
6.
In this respect, the Chamber took note that, according to the Claimant, after having
sent several default notices to the Respondent as to outstanding remuneration, to
no avail, he terminated the contract on 6 December 2018 deeming to have just cause.
Subsequently, he decided to lodge a claim in this regard before the deciding body
among the Turkish Football Federation on 22 and 25 February 2019, however
limiting said claim only to outstanding salaries arisen until termination of the
contract.
Player Sorin Bogdan Stancu, Romania / Club Bursaspor Kulübü Derneği, Turkey
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7.
With the above in mind, the DRC recalled that, in the Claimant’s view, said body
would also have been competent to decide on the termination of the contract and
its consequences only if the termination procedure would have been exercised
within the procedures stipulated in the relevant articles of the TFF Regulations. Said
termination having not been exercised such way in his opinion, the Chamber noted
the Claimant’s position concluding that his “only chance to bring his case regarding
the termination and termination compensation is before FIFA bodies”.
8.
As a consequence the Chamber took note as well that, according to the Claimant, by
means of the claim lodged before FIFA, the only contentious matter is the
termination occurred allegedly with just cause and the consequences of it.
9.
Subsequently, the Chamber recalled that, in accordance with both of its decisions
dated 11 April and 19 July 2019, the bodies among the Turkish FA decided in favour
of the player as to his claim lodged in February 2019.
10. In continuation, the Chamber recalled as well that the player lodged his claim in
front of FIFA on 25 September 2019.
11. At this point, the DRC deemed it important to underline that in the spirit of the
applicable regulations, a player – or a club – who actively decides to bring forward a
dispute before a specific body among a Football Federation, rather than making use
of the alternative dispute resolution process proposed within the legal framework
of FIFA, must demonstrate consistency in relation to the choice of the course of
action.
12. The DRC further held that it therefore cannot condone the attitude of a player or a
club who has specifically decided to submit a labour dispute to the aforementioned
body, and has subsequently decided to submit the dispute between the same parties,
based on the same legal framework binding the same parties, i.e. the employment
contract and the settlement agreement, to the FIFA Dispute Resolution Chamber;
the same is to be noted if the party submits a claim before the FIFA DRC and
thereafter seeks to lodge the same claim in front of the national body.
13. In this respect, the DRC’s contention is that a party who chooses a certain course of
legal remedy may not then decide to change the legal forum of the dispute, as this
would jeopardise the credibility of the sporting dispute resolution system. This being
said, the Chamber held that the player’s claim in front of FIFA was the continuation
of his claim lodged in front of the Turkish FA.
14. Having all the above in mind, the DRC deemed that prior to lodge his claim in front
of the Turkish bodies in February 2019, the player had the choice in front of which
body he wished to lodge his initial claim, this considering the consequences deriving
from said choice. Moreover, the members of the DRC also underlined that the
Player Sorin Bogdan Stancu, Romania / Club Bursaspor Kulübü Derneği, Turkey
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Claimant also had the opportunity, prior to terminate the contract in December
2018, to establish which would be his course of action and, once said course of action
chosen, to stick to it.
15. In continuation, the Chamber recalled the player’s argument sustaining that due to
the way he terminated the contract, i.e. “Followed the FIFA way but not the TFF
way”, he could not obtain from the Turkish body to adjudicate on said termination
and would then only be able to bring this to FIFA. In this respect, the Chamber
deemed that by acting such way, the player himself elaborated and developed a
strategy falling within the framework of the principle of “Forum Shopping”.
16. Consequently, by acting as the Claimant did, the Chamber came to the unanimous
conclusion that in application of the principle of Electa una via, non datur recursus
ad alteram, the Claimant’s way of action could not be retained as consistent.
17. All the above led the Dispute Resolution Chamber to conclude that the claim of the
player was inadmissible.
Player Sorin Bogdan Stancu, Romania / Club Bursaspor Kulübü Derneği, Turkey
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III.
Decis ion of the Dis pute Res olution Cham ber
The claim of the Claimant, Sorin Bogdan Stancu, is inadmissible.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee
or the DRC. Where such decisions contain confidential information, 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 Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Sorin Bogdan Stancu, Romania / Club Bursaspor Kulübü Derneği, Turkey
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