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 25 February 2021
Decision of the
Dispute Resolution Chamber
Passed on 25 February 2021
regarding an employment-related dispute concerning the player Jasmin Scuk
COMPOS ITION:
Geoff Thompson (England), Chairman
Stefano Sartori (Italy), member
Joseph Antoine Bell (Cameroon), member
CLAIMANT:
Jasmin Scuk, Bosnia and Herzegovina
Represented by Mr Mümin Adigüzel
RESPONDENT:
Club Buyuksehir Belediye Erzurumspor, Turkey
Represented by Mr Luis Cassanio Neves, 14 Sports Law
I. FACTS OF THE CASE
1. The Bosnian player, Mr Jasmin Scuk (hereainfter: player or Claimant), and the Turkish club,
Buyukşehir Belediye Erzurumspor Kulubu Derneği (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid as from 7 August 2018 until
31 May 2020.
2. According to the contract, the player was entitled, for the season 2019/2020, to a total
salary of EUR 300,000 payable in ten instalments of EUR 30,000 each, the first one 30
August 2019 and the last one on 30 May 2020.
3. According to the section “Conditional Bonus payments” in the contract, “If the club
promotes to the Spor Toto Super League at the end of the abovementioned football
seasons, the club will pay a bonus 50.000 (fifty thousand) Euros”.
4. Art. 9 of the contract provides as follows:
“Any dispute arising from or related to the present Agreement will be submitted exclusively
to the TFF Dispute Resolution Chamber and TFF Arbitration Board.”
5. On 9 August 2019, the parties concluded an amendment to the contract, according to
which the player’s remuneration was amended to a total of EUR 209,000 payable as
follows:
EUR 20,000 due on 30 September 2019,
9 x EUR 21,000 due on 30th of each month from October 2019 to June 2020.
6. According to clause 3b) of the amendment to the contract:
“The conditional bonus payments foreseen for 2019/2020 Season is cancelled, revoked and
replaced with the following clause;
In case the Club promotes to Super League at the end of the 2019/2020 Season, then the
Player will be entitled to receive EUR 30.000.- as bonus payment. This payment is going to
be made 60 days following the registration of the leagues by TFF. In case the Professional
Football A Team’s other members are paid with “Team Bonus” within the same reasons as
this Conditional Bonus article, then the Player will not be entitled to receive this Team Bonus
additionally”.
7. Clause 3c of the amendment to the contract, entitled “Addition to the Special Provisions of
the Employment Agreement dated 07.08.2019” provides as follows:
“Erzurum Courts and Enforcement offices are exclusively authorised to solve the disputes
arising from this Agreement”.
8. On 15 June 2020, the club addressed a letter to the player wherein it explained that, in light
of the difficult financial situation of the club as a result of the Covid-19 pandemic, it would
engage in negotiations with all the players in order to agree on a variation to their
contractual terms.
9. On 20 July 2020, the club informed the player that it would like to enter into negotiations
with him regarding the reduction of his salary. The player was given a deadline of two days
to provide the club with an answer.
10. On 21 July 2020, the player replied to the club with an e-mail, insisting that he receive all
amounts due to him in accordance with the contract.
11. On 12 August 2020, the player put the club in default regarding outstanding salaries for
the months of March, April, May and June 2020 as well as the bonus of EUR 30,000 for
the club’s promotion to the Super League. The player granted the club a deadline of 10
days to remedy the default.
12. On 16 August 2020, the club replied to the player’s default notice, referring to its previous
letters dated 15 June and 20 July 2020. The club, in conclusion, stated that it had acted in
good faith towards the player and that 16 out of 24 players had accepted to vary the
financial terms of their contract. Therefore, the club notified to the player that “we shall
pay the remunerations that accrued following the Covid-19 in the amount of EUR 114,000
with a 20% decrease”.
II. PROCEEDINGS BEFORE FIFA
13. On 25 August 2020, the Claimant filed a claim for outstanding remuneration against the
Respondent before FIFA. A summary of the parties’ positions is detailed below.
a. The claim of the Claimant
14. According to the Claimant, the Respondent failed to pay his remuneration as from March
until June 2020 as well as the bonus for promotion to the Super League.
15. The player deemed that he had correctly put the club in default in accordance with art.
12bis of the Regulations on the Status and Transfer of Players.
16. The player emphasised in this regard that the club had acknowledged its debt towards him
but had requested a “discount” for its payment.
17. The player underlined that he allegedly fulfilled all his duties and stayed with the club until
the last match of the season; therefore he is entitled to the bonus for promotion at the end
of the season 2019/2020 as well as his outstanding remuneration.
18. In view of the above, the Claimant requested the total amount of EUR 114,000 plus 5%
interest “from the due date of each salaries”.
b. Position of the Respondent
19. In reply to the Claimant’s claim, the Respondent first challenged the competence of FIFA to
decide on the present matter, referring to the jurisdiction clause contained in art. 9 of the
contract as well as to clause 3c of the amendment to the contract.
20. According to the club, “the only relevant Agreement is the one signed on 9 August 2019
(the Amendment Agreement), which clearly and unambiguously establishes that the
disputes arising from such Agreement shall be exclusively submitted to the Courts of
Erzurum, i.e. Turkish Courts”.
21. As to the merits, the club referred to the Covid-19 pandemic and related difficulties to pay
its players due to a loss of income.
22. The club also referred to its letters dated 15 June 2020 and 20 July 2020 where they sought
the player’s agreement to reduce his salary. On 21 July 2020, the player replied by a short
e-mail refusing any reduction of his salary.
23. The Respondent alleged that, since then, it had tried to contact the Claimant in order to
reach an amicable solution and guarantee the most reasonable and proportional form of
payment, respecting at all times FIFA recommendations contained in COVID-19 guidelines,
as well as the principle of good-faith and flexibility.
24. The Claimant, however, ignored the Respondent’s good faith attempts to find an amicable
solution and instead sent the default notice dated 12 August 2020, to which the
Respondent replied on 16 August 2020 that, given the player’s lack of flexibility, it would
proceed to a 20% salary reduction.
25. The club deems that it has acted in accordance with the FIFA Covid-19 guidelines by contact
each player individually in order to reach a reasonable and proportionate agreement for all
parties regarding the payment of salaries.
26. The club underlined that it “successfully reached an agreement for salary reduction with 16
out of 24 players of its squad, besides having ongoing negotiations with 5 more players”.$
27. According to the club, “with minor exceptions, the salary reduction agreements reached so
far vary from 13% to 45% of the originally agreed salary on the employment contracts. In
fact, it shall be stressed that 8 out of those 16 Players accepted a reduction equal or higher
than 20% (…)”.
28. In continuation, the Respondent expressed the view that the proposed salary reduction was
reasonable and proportionate, as other players accepted a higher decrease.
29. In conclusion, the Respondent deems that it acted in accordance with the FIFA Covid-19
guidelines and that the Dispute Resolution Chamber should confirm the proportionality of
the unilateral decision of the club to reduce the player’s salaries of March through June
2020 by 20%.
c. Claimant’s replica and comments on respondent’s challenge of competence
30. With respect to the Respondent’s challenge of FIFA’s competence to deal with the present
dispute, the Claimant held that this Chamber has jurisdiction in light of the international
dimension of the dispute.
31. Furthermore, the Claimant alleged that the judicial bodies of the Turkish Football Federation
lack impartiality. In this regard, the player referred to a recent decision of the European
Court on Human Rights (ECHR) regarding the player Ali Riza and others.
32. As to the merits and in reaction to the club’s reply regarding the salary reduction, the player
held that the club abusively uses the argument of the Covid-19 pandemic.
33. The player underlined that he waited more than 6 months to claim his outstanding
remuneration.
34. Furthermore, the player underlined that, after the championship resumed, the club ended
up being promoted and therefore its revenues increased again.
35. Finally, the player referred to a DRC decision in case 20-00758, according to which the
Dispute Resolution Chamber established that the Covid-19 pandemic does not constitute a
situation of force majeure.
III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
36. 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 25 August 2020 and submitted
for decision on 26 February 2021. Taking into account the wording of art. 21 of the
currently in force 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.
37. Furthermore, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (edition February 2021), and considering
that the present claim was lodged on 25 August 2020, the August 2020 edition of said
regulations (hereinafter: Regulations) is applicable to the matter.
38. Subsequently, the Chamber 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 August 2020), the Dispute Resolution
Chamber is in principle competent to deal with employment-related disputes with an
international dimension between players and clubs.
39. This being said, the Chamber took note of the Respondent’s challenge as to its competence
to adjudicate the present dispute. Indeed, the Respondent referred to the jurisdiction
clauses contained in both the contract and its amendment dated 9 August 2019.
Furthermore, the Respondent held that “the only relevant Agreement is the one signed on
9 August 2019 (the Amendment Agreement), which clearly and unambiguously establishes
that the disputes arising from such Agreement shall be exclusively submitted to the Courts
of Erzurum, i.e. Turkish Courts”.
40. The Claimant, for his part, maintained that the DRC is competent to rule on the present
matter in light of the international dimension of the present dispute, together with the fact
that, allegedly, the judicial bodies of the Turkish Football Federation (TFF) lack impartiality.
b. Admissibility of the claim
41. While analysing its jurisdiction to pass a decision in the present matter, the Chamber first
referred to art. 22 b) of the Regulations, according to which, as a general rule, FIFA is competent
to deal with employment-related disputes between a player and a club with an international
dimension such as the one at hand, unless the parties have explicitly opted in writing for such
disputes to be decided by an independent arbitration tribunal that has been established at
national level within the framework of the association and/or a collective bargaining agreement.
Any such arbitration clause must be included either directly in the contract or in a collective
bargaining agreement applicable on the parties. The independent national arbitration tribunal
must guarantee fair proceedings and respect the principle of equal representation of players
and clubs.
42. Equally, the Chamber referred to the first sentence of art. 22 of the Regulations, according
to which FIFA’s competence is without prejudice to the parties’ right to seek redress in front
of civil courts.
43. With this in mind, the Chamber paid close attention, on the one hand, to the jurisdiction
clause in the original contract, which provides for the exclusive jurisdiction of the TFF judicial
bodies, and on the other hand, to the amendment to the contract, which refers to the
exclusive jurisdiction of the Turkish civil courts.
44. In this regard, the Chamber noted that art. 3c) of the amendment to the contract is entitled
“Addition to the Special Provisions of the Employment Agreement dated 07.08.2019”. The
Chamber, therefore, concluded that, contrary to the Respondent’s allegations, the relevant
clause did not explicitly annul the jurisdiction clause mentioned in the contract (art. 9) but
came in addition to it.
45. It follows that, in the Chamber view, one cannot establish with certainty that the intention
of the parties was to submit their disputes exclusively to either the TFF judicial bodies, as
indicated in art. 9 of the contract, or the Turkish civil courts, as mentioned in art. 3c of the
amendment to the contract.
46. In view of the above, namely, the fact that the parties did not explicitly and exclusively
decide upon the jurisdiction of a specific deciding body other than FIFA, the Chamber,
referring to its constant jurisprudence in similar cases, concluded that it has jurisdiction to
rule on the present employment-related dispute with an international dimension, in
accordance with art. 22 b) of the Regulations.
47. The Respondent’s challenge on jurisdiction is therefore rejected and the claim of the
Claimant is admissible.
c. Burden of proof
48. The Chamber 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 stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
49. In this respect, the Chamber 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.
d. Merits of the dispute
50. The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
51. 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 whether the Claimant was
entitled to the full amount of the outstanding remuneration claimed, i.e. salaries between
March and June 2020 as well as the bonus for the club’s promotion to the Super League.
52. Indeed, the Respondent held that it wished to apply a 20% reduction to the Claimant’s
remuneration in light of the difficulties the club encountered as a result of the Covid-19
pandemic. In this context, the Respondent referred to the Covid-19 Guidelines issued by
FIFA with respect to agreements which cannot be performed as originally anticipated.
53. In this regard, the Chamber first wished to emphasise that, from the contents of the club’s
letter to the player dated 16 August 2020, it understood that the club acknowledged the
player’s debt. Indeed, according to such letter, the club mentioned “we shall pay the
remunerations that accrued following the Covid-19 in the amount of EUR 114,000 with a
20% decrease”. The amount of EUR 114,000 corresponds precisely to the amount which
the player claims as outstanding remuneration, and therefore, the club recognises that such
amount is, in principle, due.
54. Furthermore, the Chamber continued its analysis by observing that, although the
Respondent expressed its intention to pay the player’s remuneration, albeit with a 20%
deduction, it remains uncontested that, ultimately, it did not do so. In this regard, the
Chamber stated that, if the club’s intention was to honour its financial obligations towards
the player, thus demonstrating its good faith, one would have expected the club to proceed
to the payment which it deemed proportionate, i.e. by applying the 20% deduction, at an
earlier date than in August 2020 or later.
55. In view of the above, the Chamber considered that, in fact, the Respondent had not
proceeded to a unilateral variation of the contract, since it had not paid any of the amounts
which the Claimant claims were outstanding.
56. As a consequence, the Chamber was unanimous in its conclusion that, in the absence of a
unilateral variation to the contract, the respective Covid-19 guidelines issued by FIFA could
not be applied in casu. In other words, the legal principle of pacta sunt servanda remains
fully applicable to the matter at hand and the Respondent must honour its financial
obligations towards the Claimant as originally agreed in the amendment to the contract.
57. Consequently, and in light of the club’s acknowledgment of debt in its letter dated 16
August 2020, the player is entitled to a total EUR 114,000 as outstanding remuneration,
corresponding to the salaries from March to June 2020 as well as the bonus in the amount
of EUR 30,000 due to the club’s promotion to the Super League.
58. Finally, and in light of the Claimant’s respective claim and the Chamber’s constant practice,
5% interest will apply to the aforementioned amount as follows:
o 5% interest p.a. on the amount of EUR 21,000 as from 31 March 2020 until
effective payment,
o 5% interest p.a. on the amount of EUR 21,000 as from 1 May 2020 until
effective payment,
o 5% interest p.a. on the amount of EUR 21,000 as from 31 May 2020 until
effective payment,
o 5% interest p.a. on the amount of EUR 21,000 as from 1 July 2020 until
effective payment,
o 5% interest p.a. on the amount of EUR 30,000 as from 25 August 2020 until
effective payment.
59. In conclusion, the Claimant’s claim is fully accepted.
ii. Compliance with monetary decisions
60. Finally, taking into account the consideration under number 37. above, the Chamber
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.
61. 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 and for the maximum
duration of three entire and consecutive registration periods.
62. Therefore, bearing in mind the above, the DRC 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.
63. The DRC 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.
64. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Jasmin Scuk, is admissible.
2. The claim of the Claimant, Jasmin Scuk, is accepted.
3. The Respondent, Club Buyuksehir Belediye Erzurumspor, has to pay to the Claimant, the
following amount:
- EUR 114,000 as outstanding amount plus 5% interest p.a. as follows:
o 5% interest p.a. on the amount of EUR 21,000 as from 31 March 2020 until
effective payment,
o 5% interest p.a. on the amount of EUR 21,000 as from 1 May 2020 until
effective payment,
o 5% interest p.a. on the amount of EUR 21,000 as from 31 May 2020 until
effective payment,
o 5% interest p.a. on the amount of EUR 21,000 as from 1 July 2020 until effective
payment,
o 5% interest p.a. on the amount of EUR 30,000 as from 25 August 2020 until
effective payment.
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.
For the Dispute Resolution Chamber:
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:
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