Labour Disputes
Texto da decisão
REF. FPSD-15859
Decision of the
Dispute Resolution Chamber
passed on 24 October 2024
regarding an employment-related dispute concerning the player Arber Zeneli
COMPOSITION:
Frans DE WEGER (the Netherlands), Chairperson
Alexandra GOMEZ BRUINEWOUD (Uruguay & the Netherlands), Member
Mario FLORES CHEMOR (Mexico), Member
CLAIMANT:
Arber Zeneli, Sweden
Represented by Didem Sunna and Koray Akalp
RESPONDENT:
Adana Demirspor A.S., Türkiye
Represented by Umur Varat
pg. 2
REF. FPSD-15859
I. Facts of the case
1.
On 2 September 2023, the Swedish player, Arber Zeneli (hereinafter: the Player or the
Claimant), and the Turkish club, Adana Demirspor A.S. (hereinafter: the Respondent or the
Club) entered into an employment contract (hereinafter: the Contract) valid as from its date
of the signature until 30 June 2026.
2.
On 18 January 2024, the Player unilaterally terminated the Contract and filed a claim
against the Club before FIFA.
3.
On 20 March 2024, the Player and the Club agreed to settle their dispute and concluded an
agreement (hereinafter: the Settlement Agreement) in this regard.
4.
Article 3 of the Agreement stipulated the following:
“Within the scope of this Settlement Agreement Club shall pay totally NET 650.000 Euro to the
Player as following;
- 50.000 Euro on 15 May 2024
-100.000 Euro on 30 June 2024,
-100.000 Euro on 30 July 2024,
-100.000 Euro on 30 August 2024,
-100.000 Euro on 30 September 2024,
-100.000 Euro on 30 October 2024,
-100.000 Euro on 30 November 2024.
All payments indicated in the Settlement Agreement are to be considered as "net” payments.
Any tax or fee obligation or stamp duties that may arise (in the region of Turkey) from the
payments stipulated in this Agreement shall be borne by the Club.
In case one or any of the installments [sic] stated above are not paid in full and on time, 5%
interest p.a. will be added and calculated as from the respective due dates until the date of
effective payment.”
5.
On 23 August 2024, the Claimant lodged a claim before FIFA (FPSD-15715) and requested
the amount of EUR 250,000, corresponding to the first 3 instalments established in the
Settlement Agreement, as well interest of 5% p.a. starting from the due dates until the date
of effective payment.
II. Proceedings before FIFA
6.
On 2 September 2024, the Claimant filed the claim at hand before FIFA. A summary of the
parties’ position is detailed below.
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REF. FPSD-15859
a. Position of the Claimant
7.
According to the Claimant, the Respondent failed to comply with the payment of the fourth
instalment of the Settlement Agreement.
8.
The requests for relief of the Claimant were the following:
“1. To accept the claims of Arber Zeneli,
2. To condemn Club Adana Demirspor Sportif Yatirimlar ve Tic. A.S. to pay in favour of the
Claimant the total unpaid and overdue payment of Net EUR100.000.- along with the interest
rate of 5% p.a. starting from 30 August 2024 until the date of effective payment;
3. To establish that the costs of the present arbitration procedure shall be borne by the
Respondent.“
b. Position of the Respondent
9.
According to the Respondent, the Claimant did not act with good faith and is trying to take
advantage of the Club’s economic hardship by lodging the present claim before FIFA
without having sent a default notice to the Club. Therefore, the Respondent requested the
FIFA Football tribunal to deduct any excessive claims by the Claimant and reject the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 2 September 2024 and submitted for decision
on 24 October 2024. 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.
11. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (October 2024 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 Swedish player
and a Turkish club.
12. 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
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REF. FPSD-15859
and 2 of the Regulations on the Status and Transfer of Players (October 2024 edition) and
considering that the present claim was lodged on 2 September 2024, the June 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
13. 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
14. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
i. Main legal discussion and considerations
15. The Chamber then moved to the substance of the matter and took note of the fact that this
is a claim of a player against a club for outstanding remuneration, arising from the
Settlement Agreement.
16. In this regard, the Chamber recalled that, according to the Player, the Club failed to pay
him EUR 100,000 net, corresponding to the fourth instalment of the Settlement Agreement.
In addition, the Chamber took note of the Respondent’s position, i.e. that the Claimant did
not act with good faith and is trying to take advantage of the Club’s economic hardship by
lodging the present claim before FIFA without having sent a default notice to the Club.
17. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amount had in fact remained
unpaid by the Respondent.
18. The Chamber pointed out that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the Settlement Agreement.
Nonetheless, the Club failed to provide any evidence demonstrating that it complied with
the payment of the fourth instalment of the Settlement Agreement.
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REF. FPSD-15859
19. Based on the above, the Chamber concluded that the Respondent failed to pay the fourth
instalment of the Settlement Agreement.
20. Furthermore, for the sake of completeness, the Chamber highlighted that, while it is true
that, based on the evidence on file, the Player did not send a default notice to the Club for
the fourth instalment, this does not imply that the Club does not owe it to the Player. The
only consequence of the absence of a default notice is that the outstanding remuneration
cannot be considered as overdue payables in the sense of art. 12bis of the Regulations and,
therefore, the Club cannot be sanctioned based on that article. However, the Club shall
bear the consequences stipulated in the Settlement Agreement, in accordance with the
general legal principle of pacta sunt servanda.
21. In view of the foregoing and the Claimant’s request, the Chamber stated that the Club is
held liable to pay the Player the amount of EUR 100,000 net, plus 5% interest p.a. as from
31 August 2024 until the date of effective payment.
ii. Compliance with monetary decisions
22. In continuation, 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. In this regard, it was highlighted that, against clubs, the
consequence of the failure to pay the relevant amounts in due time shall consist, in
principle, of a ban from registering any new players, either nationally or internationally, up
until the due amounts are paid.
23. 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 body has already imposed on the same party a sporting sanction
on the basis of article 12bis, 17 or 18quater of the Regulations.
24. In this context, the members of the Chamber recalled that by means of a decision of the
Football Tribunal passed on date 23 September 2024 and notified on 4 November 2024, a
transfer ban has been imposed on the Respondent pursuant to art. 17 par. 4 of the
Regulations, namely in the case FPSD-14997.
25. 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.
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REF. FPSD-15859
26. In view of the above, the Chamber 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.
27. 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
28. 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.
29. 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.
30. Lastly, the Chamber concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
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REF. FPSD-15859
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Arber Zeneli, is partially accepted.
2.
The Respondent, Adana Demirspor A.S., must pay to the Claimant the following amount:
- EUR 100,000 net as outstanding amount plus 5% interest p.a. as from 31 August 2024
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 is not made within 30 days of notification of this decision, the present
matter shall be submitted, upon request of 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-15859
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:
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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