F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 31 October 2019
Decision of the Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 October 2019,
in the following composition:
Geoff Thompson (England), Chairman
Roy Vermeer (The Netherlands), member
Daan de Jong (The Netherlands), member
on the claim presented by the club,
Standard de Liège, Belgium
represented by Mr Grégory Ernes & Mr Alexander Vantyghem
as Claimant
against the player,
Player Alpaslan Oztürk, Belgium & Turkey
represented by Mr Cenk Gündogdu
as Respondent 1
and the club,
Elazigspor Kulübü Dernegi, Turkey
represented by Mr Cenk Gündogdu
as Respondent 2
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 17 May 2013, the Belgian / Turkish player, Alpaslan Oztürk (hereinafter: the Respondent I or the player) and the Belgian club, Standard de Liège (hereinafter: the Claimant or Standard de Liège) signed an employment contract (hereinafter: the contract) valid as from 1 July 2013 until 30 June 2018.
2. In accordance with the contract, the player was entitled to the following remuneration:
For the seasons 2013/2014, 2014/2015 and 2015/2016: EUR 12,500 as monthly salary payable at the latest on the 15th of the following month;
For the seasons 2016/2017 and 2017/2018: EUR 15,000 as monthly salary payable at the latest on the 15th of the following month;
Holiday benefits, double salary payable in June for each season;
Bonuses:
EUR 3,000 per match won
EUR 1,000 per tied match
Signing-on fee: EUR 750,000 payable as follows:
EUR 75,000 payable on 15 July 2013 under the condition that the player is still registered with Standard de Liège;
EUR 75,000 payable on 15 February 2014 under the condition that the player is still registered with Standard de Liège;
EUR 75,000 payable on 15 September 2014 under the condition that the player is still registered with Standard de Liège;
EUR 75,000 payable on 15 February 2015 under the condition that the player is still registered with Standard de Liège;
EUR 75,000 payable on 15 September 2015 under the condition that the player is still registered with Standard de Liège;
EUR 75,000 payable on 15 February 2016 under the condition that the player is still registered with Standard de Liège;
EUR 75,000 payable on 15 September 2016 under the condition that the player is still registered with Standard de Liège;
EUR 75,000 payable on 15 February 2017 under the condition that the player is still registered with Standard de Liège;
EUR 75,000 payable on 15 September 2017 under the condition that the player is still registered with Standard de Liège;
EUR 75,000 payable on 15 February 2018 under the condition that the player is still registered with Standard de Liège.
3. Art. 6.8 of the contract provided that Standard de Liège pays a contribution to the player’s pension fund in his name every 3 months to the insurance provided by the League (“the contributions are not included in the monthly remuneration”). The annual amount is calculated as follows (free translation from French): “for insured people who’s remuneration is between EUR 12,394.68 and EUR 18,592.01: 10% of the amount above EUR 12,394.68 with a minimum of EUR 150”.
4. In accordance with art. 6.9 of the contract, the player is entitled to EUR 1,000 per month as travel expenses and EUR 1,000 per month as accommodation fee.
5. Art. 10.2 of the contract provided that “in accordance with the definition of the player's benefits and obligations, non-selection to the club's teams is not likely to deprive the contract of purpose nor give the player a just cause for breach of this contract.” (original in French: “conformément à la définition des prestations et obligations du joueur, la non sélection dans les équipes du club n'est pas de nature à priver le contrat d'objet et à faire naître au bénéfice du joueur une juste cause de rupture du présent contrat. »).
6. Art. 13 of the contract provided that Standard de Liège may impose sanctions and fines on the player in writing and the player has a possibility to appeal the decision in accordance with the regulations of the Royal Belgium Football Association.
7. Art. 5 of the contract provided that the address of the player is the one provided in the contract and that he should inform Liège in case of change of address; however the contract does not contain the player’s address.
8. The contract contains no compensation clause in case of breach of contract by either of the parties.
9. On 27 July 2015, Standard de Liège and the Turkish club, Eskisehirspor Kulubu (hereinafter : Eskisehirspor) signed a loan agreement (hereinafter: the loan agreement) for the temporary transfer of the player from the former to the latter, valid as from 28 July 2015 until 30 June 2016, and in accordance with which the contract was suspended during the period of the loan. In accordance with the loan agreement, Standard de Liège was entitled to EUR 50,000 as loan fee payable in two instalments of EUR 25,000 on 25 August 2015 and May 31 2016.
10. According to the documentation on file, on 1 July 2016, Standard de Liège addressed a letter to the player informing him that he was fined in the amount of EUR 1,500 as he was absent from training on 1 July 2016, and that this amount “will be retained from the salary of July 2016”.
11. On 18 August 2016, Standard de Liège addressed another letter to the player informing him that he was imposed another fine of EUR 1,700 as he did not provide his departure and return dates as agreed with his coach prior to his departure to Turkey. In the same letter, Standard de Liège the player to resume training by no later than 24 August 2016.
12. On 24 August 2016, Standard de Liège sent another letter to the player requesting the latter to return to the club on 30 August 2016. Said letter also referred to the fact that he was absent from training on 24 August 2016 and that consequently he was being sanctioned with a fine of EUR 1,700. The letter further provided that the execution of the contract, in particular the payment of salaries, was suspended.
13. By means of a letter dated 2 September 2016, Standard de Liège informed the player that, in view of his attitude, they considered that he had unilaterally terminated the contract and informed him that as of that date, he was no longer a player of the club.
14. On 26 January 2017, the player and Elazigspor signed an employment contract valid as from the date of signature until 31 May 2018, in accordance with which the player was entitled to the total remuneration of EUR 90,000.
15. On 15 August 2017, Standard de Liège lodged a claim in front of FIFA against the player and Elazigspor for breach of contract, requesting the total amount of EUR 1,770,454.16 plus 5% interest as from the date of the claim, corresponding to the following:
EUR 75,000 as compensation for “specificity of sport”;
EUR 750,000 as “estimated loss of chance to conclude a transfer contract”;
EUR 909,788.25 as residual value of the contract, corresponding to:
o EUR 330,000 for 22 monthly salaries of EUR 15,000 each,
o EUR 30,00 for 2 months of holiday pay;
o EUR 120,000 as estimated match bonuses for “120 competition points over 2 seasons”;
o EUR 300,000 as signing bonus
o EUR 85,788.25 as “employer contributions to the player’s pension fund” (note art. 6.8 of the contract), which Standard de Liège calculated as follows: “the player’s yearly reference salary amounts to EUR 180,000 fixed salary + EUR 60,000 estimated match bonuses i.e. EUR 240,000. The employer contributions therefore amount to EUR 47,719.50 + 45% of (EUR 240,000 + EUR 148,736.11) = EUR 85,788.25”;
o EUR 44,000 as “benefits in kind due to the player in the last 22 months (note: art. 6.9 of the contract).
EUR 35,665.91 for the fines imposed on the player, corresponding to:
o EUR 1,500 of fine on 1 July 2016;
o EUR 1,700 of fine on 18 August 2016;
o EUR 1,700 of fine on 24 August 2016.
Joint liability for the payment of the aforementioned compensation by Elazigspor;
Legal costs at the expense of the player and Elazigspor.
16. Liège argued that following the end of the loan, the player missed a training session with the U21 team on 1 July 2016 and was consequently sanctioned with a disciplinary fine (cf. letter mentioned in point I.10 above).
17. Standard de Liège further explained that, thereafer, the player requested to go to Turkey to visit his pregnant and allegedly sick wife, and was granted the authorization to go, under the condition that he informs Standard de Liège of his dates of departure and return beforehand, which he accepted.
18. Standard de Liège sustained that the player left the country on 20 July 2016 and only informed them of his departure (20 July 2016) and return date (24 July 2016) on 22 July 2016 via his agent, and that his agent only provided a one way flight ticket.
19. Standard de Liège held that, after 24 July 2016, the player did not return to the club and instead sent them some medical documents about his wife’s health situation.
20. Standard de Liège argued that, despite several notices sent to the player, it did not receive any reply, and that the player deactivated his whatsapp account through which they used to communicate.
21. Standard de Liège considered that, in the absence of a reply from the player and his constant absences from training, it had no other choice but to consider the contract as terminated.
22. Standard de Liège explained that the player would probably defend his behavior due to their decision to make him train with the U21 team. In this regard, Standard de Liège emphasized that the player’s physical condition prevented him from training with the first team.
23. On the amount of compensation requested, Standard de Liège further considered that it was “perfectly in line with the actual value of the player at the time when the contract was breached”.
24. In reply to the claim, the player argued that he was “forced to leave the club by the club management”, and that Standard de Liège waited on purpose until 2 September 2016 to terminate the contract as it was the end of the transfer season.
25. The player argued that he was demoted to the U21 team and alleged that Standard de Liège had informed him that he should look for another club.
26. The player denied having been contacted by Standard de Liège and that the email address used by the club is not his. He underlined that said email address is not contained in the contract as there is no address for the player in the contract and that for the letter sent via post, there was no evidence that he had received it.
27. The player contested the whatsapp conversation and argued that it was Standard de Liège who terminated the contract and not him, as he wanted to stay with the club; however he was allegedly forced to leave due to Standard’s “attitude”.
28. He further argued that some of his salaries were paid late, without specifying which ones.
29. On the amount claimed as compensation, the player argued that it was disproportionate.
30. Elazigspor argued that it has no link to the termination of the contract, and that it had chosen to transfer the player because he was a free player.
31. It considered that it should not pay a compensation as the transfer fee of the player to join Elazigspor was null and that Elazigspor has never paid for the transfer of a player an amount comparable to the amount which Standard de Liège is requesting as compensation.
32. In its replica, Standard de Liège reiterated that it did not terminate the contract, but simply took note of the de facto termination of the player due to his constant absence.
33. On the notification of the numerous letters sent by Standard de Liège to the player, the latter club argued that it used the physical address enclosed in the player’s social documents and that it had for a previous letter a proof of receipt signed by the player for the same address. Furthermore, Standard de Liège held that, had the player changed his address, he should have informed them in accordance with art. 5 of the contract.
34. On the email address used, Standard de Liège explained that it uses the email address with which the player had allegedly contacted his agent.
35. On the demotion of the player to the U21 team, Standard de Liège argued that the contract did not specify to which team the player should be able to play with exclusively.
36. On the argumentation of the player according to which Standard de Liège was trying to get rid of him, he did not provide any evidence in that sense.
37. Despite being invited to do so, neither the player nor Elazigspor provided a final reply.
II. Considerations of the Dispute Resolution Chamber
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 submitted to FIFA on 10 August 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 par. 2 and par. 3 of the Procedural Rules).
2. Subsequently, the members of the Dispute Resolution 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. a) of the Regulations on the Status and Transfer of Players (edition 2019) the Chamber is competent to deal with the matter at stake.
3. Furthermore, 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 (edition 2019), and considering that the present claim was lodged on 10 August 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable as to the substance of the matter at hand.
4. In continuation, and entering into the substance of the matter, the members of the Chamber firstly acknowledged that, on 17 May 2013, the Claimant and the player concluded an employment contract valid for a duration of five years, starting on 1 July 2013 and ending on 30 June 2018.
5. The members of the Chamber then focused on the Claimant’s claim that, following one missed training on 1 July 2016 upon his return from loan with Elazigspor, the player travelled to Turkey on 20 July 2016 to visit his wife, but he eventually never came back to Belgium, despite the Claimant’s notifications to come back and resume training. The Claimant also imposed several fines on the Respondent I in view of his absence from training. The Claimant ultimately addressed a final letter to the Respondent I on 2 September 2016, by means of which it informed the latter that the contract is to be considered as terminated due to the player’s failure to return to the club. On such basis, the Claimant deemed that the player shall be sentenced to pay compensation for breach of contract to the Claimant in the amount of EUR 1,770,454.16 plus 5% interest as from the date of the claim. The members of the Chamber further acknowledged that the Claimant submitted that the player’s new club, i.e. Elazigspor, shall be jointly liable for the payment of the compensation for breach of contract.
6. In continuation, the Chamber duly took note of the Respondent I’s reply to the claim lodged against him and, in particular, that he was “forced to leave the club by the club management”, and that Standard de Liège waited on purpose until 2 September 2016 to terminate the contract as it was the end of the transfer season. The player deemed that it was rather the Claimant which had terminated the employment relationship. The player alleged that Standard de Liège was no longer interested in his services as he was asked to look for another club and had been demoted to the U21 team. Finally the Respondent I denied having received any of the Claimant’s written notifications asking him to resume training, either by post or email.
7. Elazigspor, for its part, essentially relied on the fact that it had hired the player because he was a free player and they did not have to pay any transfer compensation. Elazigspor further mentioned that it has never paid any amount as transfer compensation comparable to the one that the Claimant is claiming as compensation for breach of contract.
8. In view of the above-mentioned considerations, the Chamber held that the first issue to resolve in the present matter is who proceeded to the termination of the contract and when. Thereafter, the Chamber would analyse whether the termination of the contract occurred with or without just cause, and which are the potential consequences of said contractual termination.
9. In this context, the Chamber deemed fit to recall the legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.
10. Indeed, based on the Respondent I’s statement of defence, the Chamber established that the player did not deny having left Belgium on 20 July 2016 to never return until at least 2 September 2016, when the Claimant informed him that the contract could no longer be considered as being in force. Furthermore, the Respondent I could not prove that the Claimant had forced him to leave nor informed him that he should look for another club.
11. The Chamber noted that the Respondent I denied having received any of the Claimant’s written notifications; however, the Claimant provided documentary evidence that the postal address, respectively the email address to which the relevant correspondence was sent corresponded to the know contact details of the player. What is more, the Chamber was not convinced by the Respondent I’s stance consisting in denying having received such correspondence, while at the same time not enquiring about his situation with the Claimant for over a month (from 20 July 2016 to 2 September 2016).
12. Consequently, the Chamber reached the conclusion that the Respondent I had shown no interest in pursuing the employment relationship with the Claimant when he left Belgium on 20 July 2016 to never return, despite the Claimant having requested him to do so on several occasions. Therefore, the Chamber established that the Respondent I’s actions amounted to a de facto termination of the employment contract with the Claimant.
13. As a conclusion, the Chamber established that the player had breached the employment contract without just cause by leaving the Claimant and not returning until the latter club ultimately notified him of the termination of the contract on 2 September 2016.
14. Having determined which party terminated the employment contract without just cause, the Dispute Resolution Chamber focused on the potential financial and/or sporting consequences for the player of said termination of contract without just cause. The Chamber decided that, by unilaterally and prematurely terminating the employment contract with the Claimant without just cause, in accordance with article 17 par. 1 of the Regulations, the player is liable to pay compensation to the Claimant.
15. In continuation, the Chamber focussed its attention on the calculation of the amount of compensation for breach of contract in the case at stake. In doing so, the members of 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 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, the fees and expenses paid or incurred by the former club (amortised over the term of the contract) and whether the contractual breach falls within the protected period.
16. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contains a provision by which the parties had beforehand agreed upon an amount of compensation payable 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.
17. As a consequence, the members of the Chamber determined that the amount of compensation for breach of contract in the present matter 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. Therefore, other objective criteria may be taken into account at the discretion of the deciding body. Furthermore, the Chamber highlighted that each request for compensation for breach of contract has to be assessed on a case-by-case basis taking into account all specific circumstances of the respective matter, as well as the Chamber’s specific knowledge of the world of football and its experience gained throughout the years.
18. Having said this, the Chamber turned its attention to the remuneration and other benefits due to the player under the existing contract and/or the new contract. The members of the Chamber deemed it important to emphasise that the wording of article 17 par. 1 of the Regulations allows the Chamber to take into account both the existing contract and any new contract(s) in the calculation of the amount of compensation thus enabling the Chamber to gather indications as to the economic value attributed to a player by both his former and his new club(s).
19. In this respect, the Chamber noted that the monthly remuneration of the player with the Claimant amounted to EUR 15,000 in the seasons 2016/2017 and 2017/2018. Equally, the Chamber recalled that the breach of contract in the case at hand occurred at the time when the relevant employment contract was still to run for more than twenty-two months, i.e. as from September 2016 until June 2018, equalling EUR 330,000. In addition, the contract provided for four remaining instalments of the player’ signing on fee of EUR 75,000, equalling EUR 300,000. Thus, the residual value of the contract which was breached equals EUR 660,000.
20. Furthermore and as to the other amounts claimed by the Claimant as part of the residual value of the contract, the Chamber, referring to its usual practice, emphasised that it can only take into account amounts which would have been effectively paid to the player during the respective period, reason for which it did not take into account the amount of EUR 85,788.25 payable to the pension fund, which were not paid to the player directly, nor the amount of EUR 120,000 as estimated bonus payments, which are, by nature, not guaranteed payments. The same goes for the amount of EUR 44,000 as “benefits in kind due to the player in the last 22 months” and the amount of EUR 30,000 for 2 months of holiday pay.
21. On the other hand, the Chamber noted that subsequent to the moment in time when the breach of contract occurred, the player signed an employment contract with Elazigspor, valid from 26 January 2017 until 31 May 2018, in accordance with which the player was entitled to the total remuneration of EUR 90,000.
22. Having established the above, the Chamber acknowledged that the Claimant claims a damage for the alleged loss of chance to transfer the player to another club, basing itself on the purchase option contained in the loan agreement concluded with Eskisehirspor. As to this, the Chamber deemed that the Claimant had not provided any evidence that it had intended to transfer the player during the summer of 2016, and therefore decided to reject this part of the Claimant’s claim. Equally, it decided to reject the Claimant’s claim for the specificity of sport due to its lack of proper substantiation.
23. Hence, the DRC came to the conclusion that, in the present matter, the salaries of the player were the only indication as to the economic value attributed to the player and, thus, as to the potential market value of the player.
24. On account of all of the above-mentioned considerations, the Chamber decided that the player must pay the amount of EUR 388,300 to the Claimant as compensation for breach of contract, which was considered a fair and adequate amount of compensation in the present matter, as well as 5% interest as of date of claim, i.e. 15 August 2017. Furthermore, in accordance with the unambiguous content of article 17 par. 2 of the Regulations, the Chamber established that the player’s new club, i.e Elazigspor, shall be jointly and severally liable for the payment of compensation.
25. In this respect and in relation to the arguments put forward by Elazigspor, the Chamber was eager to point out that the joint liability of a player’s new club is independent from the question as to whether this new club has committed an inducement to contractual breach. This conclusion is in line with the well-established jurisprudence of the Chamber, which was repeatedly confirmed by the Court of Arbitration for Sport (CAS). Hence, the Chamber decided that Elazigspor is jointly and severally liable for the payment of the relevant compensation.
26. Finally, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.
27. The Chamber concluded its deliberation by rejecting any further claim lodged by the Claimant.
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III. Decision of the Dispute Resolution Chamber
1. The claim of the Claimant, Standard de Liège, is partially accepted.
2. The Respondent 1, Alpaslan Ozturk, has to pay to the Claimant, within 30 days as from the date of notification of this decision, compensation for breach of the contract in the amount of EUR 388,300 plus 5% interest p.a. as from 10 August 2017 until the date of effective payment.
3. The Respondent 2, Elazigspor Kulubu Dernegi, is jointly and severally liable for the payment of the aforementioned compensation.
4. In the event that the amount due to the Claimant in accordance with the above-mentioned number 2 is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.
5. Any further claim lodged by the Claimant is rejected.
6. The Claimant is directed to inform the Respondent 1 and the Respondent 2, immediately and directly of the account number to which the remittances are to be made and to notify the Dispute Resolution Chamber of every payment received.
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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
Fax: +41 21 613 50 01
e-mail: info@tas-cas.org
For the Dispute Resolution Chamber:
____________________
Emilio García Silvero
Chief Legal & Compliance Officer