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 12 February 2020

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 12 February 2020,

in the following composition:

Omar Ongaro (Italy), Deputy Chairman

Johan van Gaalen (South Africa), member

José Luis Andrade (Portugal), member

on the claim presented by the player,

Sorin Bogdan Stancu, Romania

represented by Mr Riza Köklü

as Claimant

against the club,

Bursaspor Kulübü Derneği, Turkey

represented by Mr Taner Unlu

as Respondent

regarding an employment-related dispute between the parties

I. Facts of the case

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 2018-2019 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:

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.

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.

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.

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. 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 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.

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 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.

III. Decision of the Dispute Resolution Chamber

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: info@tas-cas.org

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer