F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 24 March 2021

Decision of the Dispute Resolution Chamber

(DRC) Judge

passed on 24 March 2021

regarding an employment-related dispute concerning the player Zeni Husmani

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

Zeni Husmani, Croatia

Represented by Mr. Deniz Torun

RESPONDENT:

GiresunSpor Kulubu Dernegi, Turkey

I. FACTS OF THE CASE

1. On an unspecified date of October 2019, the Croatian player Zeni Husmani (hereinafter: the player or the Claimant) and the Turkish club Giresunspor Kulubu Dernegi (hereinafter: the club or the Respondent) signed a settlement agreement related to the employment agreement previously executed by the parties on 31 August 2018 (hereinafter: the settlement agreement).

2. Clause 1.1 of the settlement agreement stipulated the following:

“1.1 The Club hereby undertakes to pay in the total amount of net 65.000-EURO the player as follow:

 Net 20.000-EUR on the date of 14.01.2019;

 Net 10.000-EUR on the date of 31.03.2019;

 Net 15.000-EUR on the date of 31.05.2019;

 Net 10.000-EUR on the date of 30.06.2019;

 Net 10.000-EUR on the date of 31.07.2019”.

3. In addition, Clause 1.3 of the settlement agreement also established, inter alia, that “if the club fails to pay the any instalment on due time, the Player should send a notification via notary public and give the club 7 (seven) business days for payment. If the club fails to pay the instalment in 7 (seven) business days starting from the date of notification, the club will pay the Player in the amount of EUR 10.000 - net for once not for each instalment”.

4. On an unspecified date in 2019, the player lodged a claim against the club before the FIFA DRC (case ref. no. 19-00061) requesting payment of the second instalment of the settlement agreement, plus EUR 10,000 as contractual fine.

5. On 19 September 2019, the FIFA DRC issued its decision and partially accepted the claim in order to condemn the club to pay the player his outstanding remuneration, plus the penalty described in clause 1.3 of the settlement agreement.

6. On 7 December 2020, the player filed the claim at stake before FIFA requesting the amount of EUR 35,000 plus interests, corresponding to the three last instalments of the settlement agreement. The player also claimed FIFA to “condemn the club with litigation costs and attorney fee, if there are any and if it is applicable”.

7. In support of his claim, the player briefly stressed that “currently Giresunspor is obliged to pay last three installments of the protocol (dated 31.05.2019, 30.06.2019 and 31.07.2019) which are 35.000 Euro in total (15.000 Euro, 10.000 Euro and 10.000 Euro). These payment are due but still not paid. On the other hand, Giresunspor's contract violation is definitive due to the DRC's first decision”.

8. In spite of being invited to do so, the Respondent did not reply to the player’s claim.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

a. Competence and applicable legal framework

9. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 7 December 2020 and submitted for decision on 24 March 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

10. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition February 2021), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Croatian player and a Turkish club.

11. Subsequently, the DRC Judge 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 Player (edition February 2021), and considering that the present claim was lodged on 7 December 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

12. The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 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 DRC Judge stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

13. In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

14. His and the applicable regulations having been established, the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

15. The foregoing having been established, the DRC Judge moved to the substance of the matter and took note of the fact that the player lodged a claim seeking payment of outstanding remuneration based on the settlement agreement signed by the parties.

16. Subsequently, the DRC Judge took into account that the club, for its part, failed to present its response to the claim of the player, in spite of having been invited to do so. In this way, the DRC Judge considered that the club renounced its right to defence and thus accepted the allegations of the player.

17. As a consequence of the aforementioned consideration, the DRC Judge concluded that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the player.

18. To this extent, the DRC Judge turned to the evidence on file and noted that the player requested the total amount of EUR 35,000 plus interests, corresponding to the three last instalments of the settlement agreement. In this respect, the DRC Judge acknowledged that the amounts claimed by the player have a clear contractual basis and, additionally, that it remained uncontested that the club failed to remit the said payments.

19. As a consequence and in accordance with the general legal principle of pacta sunt servanda, the DRC Judge decided that the club is liable to pay to the player the aforementioned amounts.

20. Furthermore, taking into consideration the player’s request as well as the constant practice of the Dispute Resolution Chamber in this regard, the DRC Judge decided to award the player interest at the rate of 5% p.a. on the outstanding amounts as from the day following their due dates until the date of effective payment.

21. Lastly, the DRC Judge highlighted that the case at hand did not meet the criteria enshrined in art. 12bis of the Regulations and hence that no sanctions were to be imposed on the club on such account.

22. Therefore, the DRC Judge concluded that the claim shall be partially accepted.

23. Finally, taking into account the Regulations, the DRC Judge referred to par. 1 and 2 of art. 24bis 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.

24. In this regard, the DRC Judge 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 and for the maximum duration of three entire and consecutive registration periods.

25. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

26. The DRC Judge recalled that the above-mentioned bans will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

27. Lastly, the DRC Judge concluded the deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

28. The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the DRC Judge decided that no procedural costs were to be imposed on the parties.

29. Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant, Zeni Husmani, is accepted.

2. The Respondent, GiresunSpor Kulubu Dernegi, has to pay to the Claimant, the following amount:

- EUR 15,000 as plus 5% interest p.a. as from 1 June 2019 until the date of effective payment;

- EUR 10,000 as plus 5% interest p.a. as from 1 July 2019 until the date of effective payment;

- EUR 10,000 as plus 5% interest p.a. as from 1 August 2019 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

7. This decision is rendered without costs.

For the DRC Judge:

Emilio García Silvero

Chief Legal & Compliance Officer

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) 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 20 of the Procedural Rules).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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