Labour Disputes
Texto da decisão
REF. FPSD-9448
Decision of the
Dispute Resolution Chamber
passed on 1 June 2023
regarding an employment-related dispute concerning
the player Nicolas Mauricio Zalazar
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Johan VAN GAALEN (South Africa), member
Calum BEATTIE (Scotland), member
CLAIMANT:
Nicolas Mauricio Zalazar, Argentina
Represented by Federico Silva
RESPONDENT:
Bursaspor Kulubu Dernegi, Türkiye
Represented by Yakub Kizilkaya
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REF. FPSD-9448
I. Facts of the case
1. On 2 September 2021, the Claimant and the Respondent concluded an employment contract
(hereinafter: the Contract) “valid in the 2021/2022 and 2022/ 2023 football seasons”.
2. According to Art. 3 of the Contract, the monthly salary of the Claimant is equal to minimum wage.
3. On the same date, the parties concluded an additional protocol (hereinafter: the Additional
Protocol).
4. Art. 2 of the Additional protocol reads as follows:
The Present Contract is the integral part and annex of the Standard Contract. But the present
contract is the final one, which will be binding between the parties despite other contract (Standard
Contract) that might be registered before the TFF.
5. Art. 3 of Additional Protocol reads as follows:
l. FOR THE 2021/2022 SEASON TO THE PLAYER;
A. In total, a net warranty fee of 250.000 EUR will be paid in the following terms:
II FOR THE 2022/2023 SEASON TO THE PLAYER; (IF BURSASPOR CONTINUES TO PLAY IN THE TFF 1ST
LEAGUE)
In total, a net warranty fee of EUR 275,000
6. On 8 February 2022, the Claimant sent a default notice to the Respondent requesting the amount
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REF. FPSD-9448
of EUR 161,110 granting a deadline of 10 days to comply, to no avail.
7. On 8 March 2022, the Claimant sent a default notice requesting the amount of EUR 158,332,
granting a deadline of 15 days to comply, to no avail.
8. On 16 May 2022, the Claimant sent a termination notice to the Respondent adducing just cause.
9. On 7 July 2022, the Claimant signed an employment contract with the Argentinian club Defensa y
Justicia valid until 31 December 2024 (hereinafter: the DYG Contract).
10. On 6 February 2023, the Claimant was temporarily transferred to the Chilean club Nublense until
31 December 2023 (hereinafter: the Nublense contract).
II. Proceedings before FIFA
11. On 1 March 2023, 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. The Claimant states that the Respondent had failed to duly comply with its financial obligations.
13. The Claimant sustains that after putting the Respondent in default on 7 March 2022, the
Respondent made some partial payments. However, it failed to fully pay the amounts due.
14. As a result of the above, the Claimant argues that on 16 May 2022, date of termination of the
Contract, the Respondent had just paid the amount EUR 93,222 out of the total amount accrued
of EUR 227,778.
15. The Claimant submits that his monthly salary was EUR 20,833, therefore, the Respondent owed
him an amount higher that two monthly salaries and therefore, the termination was with just
cause.
16. The Claimant requests EUR 134,556 (i.e. EUR 250,000 minus EUR 93,222) as outstanding salaries:
17. According to the Claimant the residual value equals EUR 297,222, according to:
-
EUR 22,222 payable on 05/31/2022
EUR 275,000 for the entire 2022/2023 season
18. The Claimant further submits that he successfully mitigated the amount of EUR 80,365.55
(46,166.63 + 34,189.92).
19. Thus, the Claimant requests EUR 216,865.45 and additional compensation in the amount of EUR
166,666.66.
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REF. FPSD-9448
20. The Claimant concludes that “the total amount claimed is EUR 518,088.11 to which interest must be
added since each amount is due.”
21. The Claimant filed the following requests for relief:
According to what has been stated in the previous chapters, it is REQUESTED:
1) That this claim be considered as filed in due time and form, as well as the evidence requested.
2) That the club BURSASPOR be ordered to pay the sums claimed herein, plus the corresponding
interest.
3) Apply to BURSASPOR the corresponding penalties provided by art. 12bis par. 4 and art. 17 of
Regulations on tr Status and Transfer of Players
b. Position of the Respondent
22. The Respondent sustains the termination was without just cause and the claim of the Claimant
should be rejected.
23. The Respondent further sustains that the compensation requested by the Claimant is excessive.
24. According to the Respondent, the parties had “never agreed on additional payments in case the club
relegates to Turkish Second League. At the end of the 2021/2022 Football Season and before the
termination of the player, the club has relegated to the lower league, i.e., the Turkish 2nd League”.
25. The Respondent deems that “it is obvious that if the player had not terminated his contract on 16
May 2022, the monthly salary of the player for the 2022/2023 football season would have been equal
to the minimum wage as there is no additional payment for the Turkish 2nd League”.
26. Thus, the Respondent submits that any compensation should be equal to:
TOTAL: 22,222 Euros + 79,750 Turkish Lira (3,895 Euros)
c. Final comments of the Claimant
27. The Claimant submits that Respondent provides no explanation or evidence to prove or support
his affirmation that the claim was terminated without just cause.
28. The Claimant further submits that the Contract only provided for an improvement in the event of
the club's promotion, but not a reduction in salary in the event of a change of category.
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REF. FPSD-9448
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
29. 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 1 March 2023 and submitted for decision on 1 June 2023. Taking
into account the wording of art. 34 of the March 2023 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.
30. 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 player from Argentina and a club from Türkiye.
31. 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 2023 edition) and considering that the present claim
was lodged on 1 March 2023, the March 2023 edition of said regulations (hereinafter: the Regulations)
is applicable to the matter at hand as to the substance.
b. Burden of proof
32. 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
33. 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 abovementioned 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
34. 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 justice of the early termination of the contract
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REF. FPSD-9448
by the Claimant, based on the alleged non-payment of certain financial obligations by the
Respondent as per the contract, in accordance with art. 14bis of the Regulations.
35. 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.
36. The Chamber then referred 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).
37. The Chamber noted that the Claimant claims not having received his remuneration in the amount of
EUR 134,556 corresponding to more than 3 monthly salaries. Furthermore, the Chamber noted that
the Claimant has provided written evidence of having put the Respondent in default on 8 March 2022,
i.e. at least 15 days before unilaterally terminating the contract on 16 May 2022.
38. The Chamber also noted that in the case at hand the Respondent bore the burden of proving that it
indeed complied with the financial terms of the contract concluded between the parties.
Nonetheless, the evidence provided by the Respondent does not prove beyond doubt the payment
in full of the amounts claimed as outstanding by the Claimant.
39. Thus, the Chamber concluded that the Claimant had a just cause to unilaterally terminate the
contract, based on art. 14bis of the Regulations.
ii. Consequences
40. 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.
41. The Chamber observed that the outstanding remuneration at the time of termination, coupled with
the specific requests for relief of the player. In particular, the Claimant requests EUR 134,556 as
outstanding. However, since the termination took place on 16 May 2022, the Chamber decided to
include the salary for May 2022 (EUR 22,222) as outstanding.
42. 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 156,778.
43. 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 from 16 May 2022 until the date of effective payment.
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REF. FPSD-9448
44. 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.
45. 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.
46. 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 nonexhaustive enumeration of criteria to be taken into consideration when calculating the amount of
compensation payable.
47. 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.
48. In this regard, the Chamber noted the arguments of the Respondent regarding the reduction of
salaries due to the relegation of the Respondent. However, the Chamber found that the salary of the
Claimant could not be reduced as argued by the Respondent due to lack of contractual basis and
therefore, based on the principle pacta sunt servanda, the residual value of the Contract shall be
calculated considering the contractually agreed salary of the Claimant at the time of termination.
49. Consequently, the Chamber concluded that the amount of EUR 275,000 (i.e. the residual value) serves
as the basis for the determination of the amount of compensation for breach of contract.
50. 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.
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REF. FPSD-9448
51. Indeed, the player found employment with Defensa y Justicia and Ñublense. In accordance with the
pertinent employment contracts, the player was entitled to the following amounts:
ARS 65,000 * 6 months = ARS 390,000
ARS 75,000 * 1 month = ARS 75,000
CLP 5,320,000 * 4 months = CLP 21,280,000
52. Therefore, the Chamber concluded that for the overlapping period the player mitigated his damages
in the total amount of EUR 26,167.
53. Subsequently, the Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which a
player is entitled to an amount corresponding to three monthly salaries as additional compensation
should the termination of the employment contract at stake be due to overdue payables. In the case
at hand, the Chamber confirmed that the contract termination took place due to said reason i.e.
overdue payables by the club, and therefore decided that the player shall receive additional
compensation.
54. In this respect, the DRC decided to award the amount of additional compensation of USD EUR 82,500,
i.e. three times the monthly remuneration of the player. However, since the final compensation shall
not exceed the residual value, the Chamber decided that the additional compensation shall be limited
to the amount successfully mitigated (i.e. EUR 26,167).
55. Consequently, on account of all of the above-mentioned considerations and the specificities of the
case at hand, the Chamber decided that the club must pay the amount of EUR 275,000 to the player
(i.e. the residual value), which was to be considered a reasonable and justified amount of
compensation for breach of contract in the present matter.
56. 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 16 May 2022 until the date of effective payment.
i. Compliance with monetary decisions
57. 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.
58. 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.
59. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par. 3 of the
Regulations, the aforementioned consequences may be excluded where the pertinent FIFA deciding
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REF. FPSD-9448
body has already imposed on the same party a sporting sanction on the basis of article 12bis, 17 or
18quater of the Regulations.
60. In this respect, the Chamber recalled that by means of a decision passed on date 15 September 2022,
a transfer ban was imposed on the Respondent pursuant to art. 17 par. 4 of the Regulations (i.e.,
namely in the case FPSD-6212).
61. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall not apply,
insofar as in case the Respondent fails to comply with the decision at hand, the application of a
further ban from registering any new players on top of the one already being served by the
Respondent would be moot and against the spirit of the Regulations, in particularly the enforcement
mechanism established under art. 24 of the Regulations.
62. In view of the above, the DRC decided that if the aforementioned sum plus interest is not paid within
30 days of notification of this decision, the present matter shall be submitted, upon request of the
Claimant, to the FIFA Disciplinary Committee for its consideration and formal decision.
63. 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.
d. Costs
64. 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.
65. 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.
66. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of
the parties.
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67.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nicolas Mauricio Zalazar, is partially accepted.
2.
The Respondent, Bursaspor Kulubu Dernegi, must pay to the Claimant the following amount(s):
-
EUR 156,778 as outstanding remuneration plus 5% interest p.a. as from 16 May 2022 until the
date of effective payment;
-
EUR 275,000 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 16 May 2022 until the date of 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.
If full payment (including all applicable interest) is not made within 30 days of notification of this
decision, the present matter shall be submitted, upon request by the Claimant, to the FIFA
Disciplinary Committee.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-9448
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 Governing the Football Tribunal).
CONTACT INFORMATION
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