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 20 July 2020

Decision of the

Dispute Resolution Chamber

passed via videoconference, on 20 July 2020,

regarding an employment-related dispute concerning the player Loris Karius

COMPOSITION:

Omar Ongaro (Italy), Deputy Chairman Roy Vermeer (the Netherlands), member José Luis Andrade (Portugal), member

CLAIMANT:

LORIS KARIUS, GERMANY

Represented by Mr Horst Kletke

RESPONDENT:

BESIKTAS FUTBOL, TURKEY

Represented by Mr Koray Akalp

I. FACTS OF THE CASE

1. The Turkish club, Besiktas Futbol (hereinafter: Besiktas or Respondent) and the English club, Liverpool FC, concluded a contract regarding the temporary transfer of the German player, Loris Karius, (hereinafter: player or Claimant) from Liverpool FC to the Respondent.

2. In this framework, on 28 August 2018, the Claimant and the Respondent concluded an employment contract (hereinafter: the contract), valid as from the date of signature until 31 May 2020.

3. According to art. 4 of the contract, the contract would be extended until 31 May 2023, if the Respondent exercises its option to acquire the services of the Claimant on a permanent basis from Liverpool FC.

4. Pursuant to art. 6 of the contract, the Respondent undertook to pay to the Claimant, inter alia, the following remuneration:

5. Furthermore, the Claimant was also entitled to a maximum amount of EUR 3,000 per month for the rent of his apartment. However, if the rent is lower, the Respondent will only be required to pay the amount equivalent to the rent.

6. The Claimant maintained that several salaries and further payments remained outstanding.

7. Furthermore, the Claimant maintained that outstanding payments “up to and including February 2020 are already subject of a lawsuit pending before FIFA under the file number Ref. 20-00497.”

8. On 15 April 2020, the Claimant sent a letter to the Respondent, requesting the payment of “EUR 1,021,500 net”, broken down as follows, by no later than 25 April 2020:

9. On 4 May 2020, the Claimant terminated the contract with the Respondent due to its non-compliance with its financial obligations.

10. On 19 May 2020, the Claimant lodged a claim before FIFA against the Respondent, claiming outstanding remuneration in the amount of EUR 426,000, corresponding to his salaries of March 2020 and April 2020 (EUR 420,000) as well as housing costs of March 2020 and April 2020 (2 x EUR 3,000).

11. The Claimant maintained that in accordance with the principle pacta sunt servanda, the Respondent is liable to pay him the amount of EUR 426,000, including the “5% interest per year after the expiry of the contractual fixed payment period as fixed in Article 6A) of the Employment Agreement.”

12. Moreover, the Claimant requested that the Respondent has to bear the procedural costs.

13. In its reply, the Respondent first addressed the unilateral termination of the Claimant and questioned the Claimant’s reasoning to separate a claim for outstanding remuneration and a claim for compensation.

14. In regards to the unilateral termination, the Respondent wished to emphasise that the Claimant terminated the contract without just cause.

15. As to the remuneration for the months of March and April 2020, the Respondent stressed that the “COVID-19 outbreak was a matter not provided for and a force majeure situation for FIFA and football generally”.

16. In this context, the Respondent highlighted that on 19 March 2020, the Turkish Football Federation declared all national leagues and cup competitions as suspended.

17. Furthermore, the Respondent deemed that “during this time, the Respondent followed up on the health and living conditions of its players, including the Claimant, who chose to stay in Istanbul, Turkey, instead of going back home which was also permitted by the Club”.

18. In this regard, the Respondent argued that it “was unable to acquire payments form the league’s broadcaster and form its sponsor. In addition, since matches were suspended, match day revenue was also cancelled all together and the apparel sales form the Respondent’s stores have reached a record low level”.

19. Moreover, the Respondent claimed that “this unexpected situation, which the Respondent had no fault or negligence, has negatively affected the economic conditions surrounding the Respondent, making it impossible for the latter to fulfil its obligations agreed under the Contract”.

20. In addition, the Respondent argued that the “Turkish Code of Obligations (‘TCO’) also regulates impossibility of Performance under Articles 136, 137 and 138” and that in accordance with art. 136 of the TCO, “the obligor shall be released from performing the related obligations”.

21. Consequently, “due to the fact that the Claimant did not provide any service to the Respondent as a professional football player in March 2020 starting from 19 March 2020 and the whole month of April 2020, the Respondent respectfully requests the Chamber to decline the request of the Claimant in the present claim for the remuneration for March 2020 and April 2020.”

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 19 May 2020 and submitted for decision on 20 July 2020. Taking into account the wording of art. 21 of the June 2020 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.

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 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2020), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a German player and a Turkish club.

3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (June 2020 edition), and considering that the claim was lodged on 19 May 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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.

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind 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.

6. First of all, the members of the Chamber acknowledged that, on 20 August 2018, the player and the club had concluded an employment contract valid as from the date of its signature until 31 May 2020 pursuant to which the club undertook to pay to the player the remuneration, as established in points I.4. and 5. above.

7. Furthermore, the members of the DRC took note of the fact that, on 15 April 2020, the player had put the club in default of payment of the amount of “EUR 1,021,500 net”, setting a deadline until 25 April 2020 in order to remedy the default. In this regard, the DRC took note of the Claimant’s argument that a part of this remuneration was claimed in a different claim with reference number 20-00497 and that in the matter at hand, he claims outstanding remuneration corresponding to the months March/April 2020.

8. Subsequently, the members of the DRC took note that the club, for its part, did not contest that didn’t pay several salaries and housing allowances, but argued that it faces “financial difficulties” and that the COVID-19 pandemic has made it very difficult for the club to complete all the payments. In this regard, the DRC noted the Respondent’s argument that the “COVID-19 outbreak was a matter not provided for and a force majeure situation for FIFA and football generally”.

9. Furthermore, the Chamber took note of the Respondent’s argument that the Claimant terminated the contract without just cause on 4 May 2020.

10. In this context, the DRC first highlighted that the matter with reference number 20-00497 was decided with a decision dated 4 June 2020. Said claim dealt with the player’s claim for outstanding remuneration corresponding to a part of November 19, the full salaries from December 2019 until February 20, plus housing costs as from October 2019 to February 2020.

11. The members of the Chamber further pointed out that the current dispute deals with the claim for outstanding remuneration of the player and not the nature of the player’s termination dated 4 May 2020, as no claim for compensation for breach of contract was received by either party.

12. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

13. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying a player’s salary.

14. In this context, the DRC considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

15. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit to the Claimant the total amount of EUR 426,000 corresponding to the salary for March and April 2020 in the amount of EUR 420,000 and the unpaid housing allowance for March and April 2020 in the amount of EUR 6,000.

16. Consequently, the members of the Chamber decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in the total amount of EUR 426,000.

17. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided to award the Claimant interest as follows:

- 5% interest p.a. on the amount of EUR 210,000 as from 1 April 2020;

- 5% interest p.a. on the amount of EUR 210,000 as from 1 May 2020;

- 5% interest p.a. on the amount of EUR 6,000 as from 18 May 2020.

18. Moreover, the Chamber rejected any claim for legal expenses and procedural compensation in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

19. Furthermore, taking into account the consideration under number II./3. 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.

20. In this regard, the Chamber pointed out 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.

21. 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, following the notification of the present decision, communicates the relevant bank details to the Respondent, 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.

22. Finally, the Chamber 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. 24bis par. 3 of the Regulations.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Loris Karius, is partially accepted.

2. The Respondent, Besiktas Futbol, has to pay to the Claimant, the following amount:

- EUR 426,000 as outstanding remuneration plus interest p.a. until the date of effective payment as follows:

- 5% interest p.a. on the amount of EUR 210,000 as from 1 April 2020;

- 5% interest p.a. on the amount of EUR 210,000 as from 1 May 2020;

- 5% interest p.a. on the amount of EUR 6,000 as from 18 May 2020.

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.

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:

Fédération Internationale de Football Association

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

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777