Labour Disputes
Texto da decisão
REF FPSD-6133
Decision of the
Dispute Resolution Chamber
passed on 26 January 2023
regarding an employment-related dispute concerning the player Ervin
Zukanovic
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Jorge Gutiérrez (Costa Rica), member
Stijn Boeykens (Belgium), member
CLAIMANT / COUNTER-RESPONDENT:
Ervin Zukanovic, Bosnia and Herzegovina
Represented by Zoran Rasic
RESPONDENT / COUNTER-CLAIMANT:
Fatih Karagumruk AS, Türkiye
Represented by Sami Dinç
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I. Facts of the case
1.
On 1 September 2020, the Bosnian player Ervin Zukanovic (hereinafter the player) and the
Turkish club Fatih Karagumruk AS (hereinafter the club) concluded an Employment
Agreement (hereinafter the Employment Agreement) valid as from the signing date until
31 May 2022.
2.
In Clause 6 of the Employment Agreement, the player and the club (jointly referred to as
the parties) agreed, inter alia, upon the following remuneration:
−
−
3.
For the season 2020/2021
o An advanced payment of EUR 100,000, payable in two equal instalments of
EUR 50,000(10 business days after signing the contract / on 15 June 2021).
o
Yearly salary of EUR 350,000, payable in ten equal instalments of EUR 35,000
between September 2020 – June 2021 “the last day of the relevant month”.
o
Yearly living costs of EUR 15,000, payable in ten equal instalments of EUR
1,500 between September 2020 – June 2021 “the last day of the relevant
month”.
For the season 2021/2022 (in case the club remains in TFF Super League)
o An advanced payment of EUR 100,000, payable in two equal instalments of
EUR 50,000 (on (on 31 August 2021 / on 15 June 2022).
o
Yearly salary of EUR 250,000, payable in ten equal instalments of EUR 35,000
between September 2021 – June 2022 “the last day of the relevant month”.
o
However, in case the player plays in more than 25 TFF Super League matches
in the first squad for the club during 2020/2021:
o Yearly salary of EUR 350,000, payable in ten equal instalments of EUR
35,000 between September 2021 – June 2022 “the last day of the relevant
month”.
o Yearly living costs of EUR 15,000, payable in ten equal instalments of EUR
1,500 between September 2021 – June 2022 “the last day of the relevant
month”.
On 17 February 2022, the club sent the following letter to the player:
“We hereby state that, you are granted not to attend the trainings of the Professional
football A team
Of the Club between 17.02.2022 and 18.02.2022.”
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4.
On the same day, the player inquired as follows: “Can you please inform us what is the
reason for the exemption of the trainings for 2 days?”
5.
In reply thereto, the club sent a decision by its board, wherein it was decided that the
player needs to go for individual trainings for the next 2 weeks due to two reasons, as to:
["… (1) insufficient physical performance in contrast with A team level and (2) his disharmony
within the team according to the report of the technical staff."]
6.
On 18 February 2022, the player asked the club to be reintegrated in the training with the
team immediately from Monday, 21 February 2022.
7.
On 5 March 2022, the club sent a new decision, continuing the individual trainings for
another 14 days from 6 until 20 March 2022.
8.
On 14 March 2022, the player replied to the letter, challenging the alleged poor
performance and disharmony with the team and requesting to be reintegrated with the
team and “reminded the [club] that the salary from February 2022 was not paid until
28.02.2022.”
9.
On 18 March 2022, the club replied that it is complaint with the FIFA regulations and that
the player shall only be re-integrated when he is in good physical condition. Finally, the
club argued that the player’s behaviour is “causing some serious unrest inside the team and
damages the cohesion in the team.”
10. In a letter of 19 March 2022, the player rejected the argumentation of the club, asserting
that “to practise individually for almost one month is a serious breach of his fundamental
rights. Moreover, the [player] stated once again that he was not paid the February salary so
far.”
11. In its reply of 23 March 2022, the club replied to the player, repeating the previous
allegations and sending a training schedule for the player for another 14 days, i.e. from
24 March 2022 until 7 April 2022.
12. On 1 April 2022, the player stated the following in the correspondence addressed to the
club:
“1) The Player is staying outside of the team with no possibility to play a match since 43 days;
2) that the salary for February is due since 28.02.2022;
3) to be aware that the March salary became due as per 31.03.2022;
4) that all team‐members were duly paid the salary for February, except the [player].
Therefore, the [club] does not respect the fundamental rights of the [player], as not being
allowed to train with the team. Moreover, the [club] is also violating against the personal
rights of the [player], since he was not paid the February salary, while other team‐members
were duly paid. In consequence thereof, the [club] was urged by the [player]:
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1) To pay 2 salaries for February and March of EUR 25'000 each plus 3 rental fees of EUR
1'500 each from January until March, i.e. the total amount of EUR 54'500 within 15 days
upon notification, i.e. at latest on 16 April 2022.
2) To be re‐integrated in the team immediately per 4 April 2022.”
13. Between 1 and 8 April 2022, various WhatsApp correspondence has been exchanged
between the parties regarding the delayed salary payments. The player pointed out that
he would accept a late payment, in case of immediate re-integration.
14. Nonetheless, on 6 April 2022, the club offered to mutually terminate the Employment
Agreement in exchange for a payment in the full amount of the contract, to which the
player was willing to agree.
15. On 7 April 2022, the parties engaged in discussions regarding a payment plan.
16. On 8 April 2022, the club sent the draft of the “Amendment Protocol” via WhatsApp,
stipulating, inter alia, the following provisions:
“3 - As of the signing date of this Amendment Protocol (hereinafter referred to as “Protocol”),
the Player has a total amount of 54.500,00-Euro (Fifty Four Thousand Five Hundred Euro)
due and unpaid receivables from the Club (including the monthly salaries of February
2022 and March 2022 and living costs of January 2022, February 2022 and March 2022).
On 01.04.2022 the Player sent a formal notice to the Club and requested the abovementioned overdue amounts and allowed the Club to fulfil its’ obligations in 15 days as of
the receipt of the above-mentioned formal notice.”
“5 - The determined above-mentioned overdue total amount of 54.500,00-Euro (Fifty Four
Thousand Five Hundred Euro) (including the monthly salaries of February 2022 and March
2022 and living costs of January 2022, February 2022 and March 2022) and upcoming total
amount of 129.500,00-Euro (One Hundred and Twenty Nine Thousand Five Hundred Euro)
(including monthly salaries of April 2022, May 2022, June 2022 and upcoming living costs of
April 2022, May 2022, June 2022 and upcoming guarantee payment of 50.000,00-Euro dated
15.06.2022) for the 2021/2022 football season shall be paid to the Player as follows:
“In 10 days following the signature date of this Protocol: 20.000,00-Euro
− 31.05.2022: 10.000,00-Euro
− 30.06.2022: 10.000,00-Euro
− 31.07.2022: 10.000,00-Euro
− 31.08.2022: 13.400,00-Euro
− 30.09.2022: 13.400,00-Euro
− 31.10.2022: 13.400,00-Euro
− 30.11.2022: 13.400,00-Euro
− 31.12.2022: 13.400,00-Euro
− 31.01.2023: 13.400,00-Euro
− 28.02.2023: 13.400,00-Euro
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− 31.03.2023: 13.400,00-Euro
− 30.04.2023: 13.400,00-Euro
− 31.05.2023: 13.400,00-Euro”
as well as the following provision:
6 - With the signing of this Protocol, the Player irrevocably agrees, accepts and undertakes
that, the above-mentioned notification sent by the Player on 01 April 2022 will become null,
void and invalid with all consequences and effects without any further notice needed. With
this regard, the Player shall not have right to terminate the Contract signed between the
Parties based on the above-mentioned notification.”
17. In reply thereto, the player did not accept this proposal arguing that he cannot “wait one
year for the money” while he is “exempted from trainings with the first team”.
18. On 19 April 2022, the player terminated the Employment Agreement with the club due to
overdue “2 monthly salaries for February and March of total EUR 50'000 and overdue rental‐
fees of EUR 4'500”.
19. On 16 August 2022, the player signed a new employment contract with the Greek club
Asteras Tripolis valid for one sporting season.
II. Proceedings before FIFA
20. On 23 May 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
21. The requests for relief of the player were the following:
“a) To uphold that the contract was unilaterally breached without just cause by the [club],
according to FIFA RSTP, IV. art. 14. & art. 14bis and according to Swiss law CO, art. 337 par.
1.a) & art. 337b);
b) To uphold the right of the [player] to receive the outstanding salaries, living costs and the
compensation until the end of his contract, i.e. until 30 June 2022, for the breach of the
contract by the [club], according to the FIFA RSTP, IV. art. 14., 14bis & 17.1. and according
to Swiss CO, art. 337 par. 1.a), art. 337b, 339 par. 1., and to order to the [club] to pay as
follows:
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c) 5 % interest rate p.a. is applicable for every single payment since the due date until the
day of effective payment for the due amounts of EUR 54'500 under b) i‐v; according to Swiss
CO, art. 104 and 339 par. 1;
d) 5 % interest rate p.a. is applicable for the compensation of EUR 129'500 under b) vi‐xii);
upon the date of termination from 19.04.2022 until the day of effective payment, according
to Swiss CO, art. 104 and 339 par. 1;
e) To impose disciplinary sanctions on the [club], according to FIFA Regulations on the Status
and Transfer of Players, IV. art. 17.4.”
22. The player based his claim on art. 14bis of the Regulations.
b. Position of the club
23. The club lodged a counterclaim its reply, including the following request for relief:
“To dismiss the claim of the [player].
To decide that the unilateral termination made by the [player] was made without a just
cause.
To impose sportive sanctions on the [player],
To decide to pay the [player] a compensation to the [club] in the amount of 500.000,00Euro.
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To make a decision that the judicial costs and the attorneyship fees that the [player] is faced
with shall paid by the [player].”
24. The club was of the opinion that it paid over EUR 660,181.31and TL 92,995.00 (which
corresponds to EUR 9,651.31) and considering the several payments made, the player’s
total overdue receivables at the date of termination amounted only to EUR 30,667.69, i.e.
the termination occurred without just cause.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
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 case at hand. In this respect, it
took note that the present matter was presented to FIFA on 23 May 2022 and submitted
for decision on 26 January 2023. Taking into account the wording of art. 34 of the October
2022 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.
2.
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 October 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 an
Bosnian player and a Turkish club.
3.
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 (October 2022 edition)
and considering that the present claim was lodged on 23 May 2022, the March 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
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).
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c. Merits of the dispute
5.
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
6.
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
termination of the employment contract, based on the alleged non-payment of certain
financial obligations by the club as per the contract, in accordance with art. 14bis of the
Regulations.
7.
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 club and, if so, whether the formal pre-requisites of art. 14bis of the
Regulations had in fact been fulfilled.
8.
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).
9.
The Chamber noted that the player claims not having received his remuneration
corresponding to partial payments of salaries between February until April 2022, as well
as the living costs between January until April 2022. Furthermore, the Chamber noted that
the player has provided written evidence of having put the club in default on 1 April 2022,
i.e. at least 15 days before unilaterally terminating the contract on 19 April 2022.
10. The Chamber also noted that in the case at hand the club bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
In this respect, the Chamber recalled that the club submitted several proofs of payments
in TRY and EUR (not specifying nor allocating the amounts paid).
11. The Chamber then turned their attention to the evidence provided by the club. As to the
payments in TRY, the Chamber observed that the Employment Agreement specifies that
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the salary payments shall be in EUR and that the proofs of payments merely mention
“regarding receivables”. Due to the fact that the club also failed to allocate those amounts,
the Chamber concluded that those shall not be recognized as salary payments.
12. Moreover, based on the evidence on file, the DRC observed that the latest salary payment
was made on 10 February 2022, corresponding to the January 2022 salary (EUR 25,000
merely, i.e. no living costs). Consequently, the DRC was of the opinion that the club failed
to prove that it made the relevant amounts to the player, i.e. the evidence provided by
the club does not prove beyond doubt the payment of the amounts claimed as
outstanding by the player.
13. Thus, the Chamber concluded that the player had a just cause to unilaterally terminate
the contract, based on art. 14bis of the Regulations and rejected the counterclaim of the
club.
ii. Consequences
14. 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
club.
15. The Chamber observed that the outstanding remuneration at the time of termination,
coupled with the specific requests for relief of the player, are equivalent to three monthly
salaries and four monthly payments of living costs under the contract, amounting to
EUR 81,000.
16. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the Chamber decided that the club is liable to pay to the player the amounts
which were outstanding under the contract at the moment of the termination, i.e.
EUR 81,000 (i.e. EUR 25,000 times 3 plus EUR 1,500 times 4).
17. In addition, 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 over the
respective amounts as follows:
-
EUR 1,500 plus 5% interest p.a. 1,500 as from 1 February 2022 until the date of the
effective payment;
EUR 26,500 plus 5% interest p.a. as from 1 March 2022 until the date of the effective
payment;
EUR 26,500 plus 5% interest p.a. as from 1 April 2022 until the date of the effective
payment;
EUR 26,500 plus 5% interest p.a. as from 19 April 2022 until the date of the effective
payment.
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18. 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.
19. 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.
20. 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 non-exhaustive enumeration of criteria to be taken into
consideration when calculating the amount of compensation payable.
21. 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. Consequently, the Chamber
concluded that the amount of EUR 103,000 (i.e. EUR 25,000 times 2 plus EUR 1,500 times
2 plus EUR 50,000) serves as the basis for the determination of the amount of
compensation for breach of contract.
22. 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.
23. In this respect, the Chamber noted that the player remained unemployed since the
unilateral termination of the contract.
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24. The Chamber referred to art. 17 par. 1 lit. ii) of the Regulations, according to which, in case
the player did not sign any new contract following the termination of his previous
contract, as a general rule, the compensation shall be equal to the residual value of the
contract that was prematurely terminated.
25. In this respect, the Chamber decided to award the player compensation for breach of
contract in the amount of EUR 103,000 as the residual value of the contract.
26. 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 23 May 2022 until the date of effective payment.
iii. Compliance with monetary decisions
27. 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.
28. 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 duration of the registration ban shall be of up to three entire and consecutive
registration periods.
29. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
30. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
31. 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. 24 par. 8 of
the Regulations.
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d. Costs
32. 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.
33. 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.
34. 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 / Counter-Respondent, Ervin Zukanovic, is partially accepted.
2.
The Respondent / Counter-Claimant, Fatih Karagumruk AS, has to pay to the Claimant /
Counter-Respondent, the following amount(s):
-
EUR 1,500 as outstanding remuneration plus 5% interest p.a. 1,500 as from
1 February 2022 until the date of the effective payment;
EUR 26,500 as outstanding remuneration plus 5% interest p.a. as from 1 March
2022 until the date of the effective payment;
EUR 26,500 as outstanding remuneration plus 5% interest p.a. as from 1 April
2022 until the date of the effective payment;
EUR 26,500 as outstanding remuneration plus 5% interest p.a. as from 19 April
2022 until the date of the effective payment.
- EUR 103,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 23 May 2022 until the date of effective payment.
3.
Any further claims of the Claimant / Counter-Respondent are rejected.
4.
The claim of the Respondent / Counter-Claimant is rejected.
5.
Full payment of the amounts stipulated in par. 2 (including all applicable interest) shall be
made to the bank account indicated in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 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 of the ban
shall be of up to 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.
7.
The consequences shall only be enforced at the request of the Claimant / CounterRespondent in accordance with art. 24 par. 7 and 8 and art. 25 of the Regulations on the
Status and Transfer of Players.
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9.
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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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